Review of
Sedition Laws
DISCUSSION PAPER
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DISCUSSION PAPER 71
May 2006
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Commission Reference: DP 71
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Contents
Terms of Reference
List of Participants
List of Proposals
5
7
9
1. Introduction to the Inquiry
Background to the Inquiry
Terms of Reference
Federal criminal law and practice
Law reform processes
Organisation of Discussion Paper 71
Written submissions
13
13
22
22
27
30
32
2. Overview of Proposed Reforms
Introduction
Background
Do we need the concept of ‗sedition‘?
Offences against political liberty and public order
Unlawful associations
Review of old Crimes Act provisions
Ancillary matters
Net effect of the proposed changes
33
33
33
35
40
43
45
45
47
3. Origins and History of Sedition Law
Introduction
The origins and evolution of common law sedition
Sedition in Australia
Reform trends: modernise or abolish?
49
49
51
55
61
4. Australian Sedition Laws and Related Provisions
Introduction
New sedition offences in the Criminal Code
Related federal legislation
State and territory sedition laws
65
65
66
70
77
5. International Framework
Introduction
Status of international law
International law and terrorism
International human rights law: article 19 of the ICCPR
81
81
82
83
87
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Review of Sedition Laws
6. Sedition Laws in Other Countries
Introduction
Europe
United Kingdom
United States of America
Hong Kong
Canada
Other countries
95
95
96
99
105
108
110
110
7. Sedition and Freedom of Expression
Introduction
Freedom of expression and the Constitution
Sedition and domestic protection of human rights
Risk of unfair or discriminatory application of sedition laws
Absence of bills of rights in Australia
Sedition and freedom of expression generally
Journalism and the arts
113
113
115
120
121
126
128
132
8. Offences Against Political Liberty
Introduction
Incitement and the sedition offences
Fault elements
Other drafting issues
Urging the overthrow of the Constitution or Government
Urging interference in Parliamentary elections
Urging a person to assist the enemy
Extraterritorial application
Requirement of Attorney-General‘s consent
137
137
139
145
149
153
156
158
166
170
9. Urging Inter-Group Violence
Introduction
Legislating against the incitement of hatred and violence
Sedition and inter-group violence
Criticisms of section 80.2(5)
ALRC‘s view
177
177
179
184
189
199
10. Defences and Penalties
Introduction
The good faith defences
Penalties
205
205
206
222
11. Unlawful Associations
Introduction
Unlawful associations provisions
Other offences under Part IIA
227
227
228
240
Contents
Appendix 1 Existing Criminal Code Provisions
Appendix 2 Proposed Division 80 of the Criminal Code
Appendix 3 List of Submissions
Appendix 4 List of Consultations
Appendix 5 List of Abbreviations
3
243
251
257
261
263
Terms of Reference
REVIEW OF SEDITION LAWS
I, Philip Ruddock, Attorney-General of Australia, having regard to:
• the circumstances in which individuals or organisations intentionally urge others
to use force or violence against any group within the community, against
Australians overseas, against Australia‘s forces overseas or in support of an
enemy at war with Australia; and
• the practical difficulties involved in proving a specific intention to urge violence
or acts of terrorism;
refer to the Australian Law Reform Commission (‗the Commission‘) for inquiry and
report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act
1996, the operation of Schedule 7 of the Anti-Terrorism Act (No 2) 2005 and Part IIA
of the Crimes Act 1914.
1. In performing its functions in relation to this reference, the Commission will
consider:
(a)
(b)
whether the amendments in Schedule 7 of the Anti-Terrorism Act (No 2)
2005, including the sedition offence and defences in sections 80.2 and
80.3 of the Criminal Code Act 1995, effectively address the problem of
urging the use of force or violence;
whether ‗sedition‘ is the appropriate term to identify this conduct;
(c)
whether Part IIA of the Crimes Act 1914, as amended, is effective to
address the problem of organisations that advocate or encourage the use
of force or violence to achieve political objectives; and
(d)
any related matter.
2. The Commission will identify and consult with relevant stakeholders.
3. The Commission is to report no later than 30 May 2006.
Dated 1st March 2006
Philip Ruddock
Attorney-General
List of Participants
Australian Law Reform Commission
Division
The Division of the ALRC constituted under the Australian Law Reform Commission
Act 1996 (Cth) for the purposes of this Inquiry comprises the following:
Professor David Weisbrot (President)
Mr Brian Opeskin (Deputy President)
Associate Professor Les McCrimmon (Commissioner)
Justice Susan Kenny (part-time Commissioner)
Justice Susan Kiefel (part-time Commissioner)
Senior Legal Officers
Bruce Alston
Kate Connors
Isabella Cosenza (from May 2006)
Legal Officers
Althea Gibson (from May 2006)
Melissa Lewis (until April 2006)
Edward Santow
Research Manager
Jonathan Dobinson (until April 2006)
Lani Blackman (from April 2006)
Librarian
Carolyn Kearney
Project Assistants
Alayne Harland
Tina O‘Brien
Legal Interns
Justin Carter
Michelle Tse
Laura Thomas
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Review of Sedition Laws
Advisory Committee Members
David Bernie, New South Wales Council of Civil Liberties
Professor David Brown, Law School, University of New South Wales
Damian Bugg QC, Commonwealth Director of Public Prosecutions
Emeritus Professor Michael Chesterman, Administrative Decisions Tribunal (NSW)
Kate Eastman, New South Wales Bar
Dr David Neal SC, Victorian Bar
Mark Polden, John Fairfax Holdings Ltd
Padma Raman, Equal Opportunity Commission of Victoria
Chief Judge Michael Rozenes, County Court of Victoria
Michael Sexton QC, Solicitor-General for New South Wales
Hon John von Doussa, President, Human Rights and Equal Opportunity Commission
Bret Walker SC, New South Wales Bar
Neil Williams SC, New South Wales Bar
List of Proposals
The relevant sections of the Criminal Code, amended consistently with the proposals,
are set out in full in Appendix 2.
2.
Overview of Proposed Reforms
2–1
The Australian Government should remove the term ‗sedition‘ from federal
criminal law. To this end, the headings of Part 5.1 and Division 80 of the
Criminal Code (Cth) should be changed to ‗Treason and offences against
political liberty‘, and the heading of s 80.2 should be changed to ‗Offences
against political liberty and public order‘.
2–2
The Australian Government should initiate a process through the Standing
Committee of Attorneys-General to remove the term ‗sedition‘ from state
and territory laws and to modernise and harmonise the relevant laws in
keeping with the proposed changes to federal law.
4.
Australian Sedition Laws and Related Provisions
4–1
The Australian Government should initiate a review of the remaining
offences contained in Part II of the Crimes Act 1914 (Cth) to determine
which offences merit retention, modernisation and relocation to the Criminal
Code (Cth), and which offences should be abolished. This review should
include the offences in ss 24AA, 24AB and 25–29 of the Crimes Act.
6.
Sedition Laws in Other Countries
6–1
There is no need to introduce into federal law an offence of ‗encouragement
or glorification of terrorism‘, along the lines of that in s 1 of the Terrorism
Act 2006 (UK).
8.
Offences Against Political Liberty
8–1
Section 80.2 of the Criminal Code (Cth) (Criminal Code) should be amended
to provide that, for a person to be guilty of any of the offences under s 80.2,
the person must intend that the urged force or violence will occur.
8–2
The heading of s 80.2(1) of the Criminal Code should be changed to refer to
urging the overthrow by ‗force or violence‘ of the Constitution or
Government.
8–3
The word ‗intentionally‘ should be inserted in s 80.2(1) of the Criminal Code
before the word ‗urges‘ to clarify the fault element applicable to urging the
use of force or violence.
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Review of Sedition Laws
8–4
Section 30C of the Crimes Act 1914 (Cth), concerning ‗advocating or
inciting to crime‘, should be repealed.
8–5
The heading of s 80.2(3) of the Criminal Code should be changed to refer to
urging interference in Parliamentary elections by ‗force or violence‘.
8–6
Section 80.2(3) of the Criminal Code should be amended to:
•
insert the word ‗intentionally‘ before the word ‗urges‘, to clarify the
fault element applicable to urging the use of force or violence; and
•
apply to interference with the lawful processes for a referendum on a
proposed law for the alteration of the Constitution.
8–7
As a consequence of Proposal 8–6, s 80.2(4) of the Criminal Code should be
amended to apply recklessness to the element of the offence under s 80.2(3)
that it is lawful processes for a referendum on a proposed law for the
alteration of the Constitution that a person urges another to interfere with.
8–8
Sections 80.2(7), (8) and (9) of the Criminal Code, concerning the offences
of urging a person to assist the enemy and urging a person to assist those
engaged in armed hostilities against the Australian Defence Force, should be
repealed.
8–9
The treason offences in s 80.1(1)(e)–(f) should be amended to:
•
remove the words ‗by any means whatever‘;
•
provide that conduct must ‗materially‘ assist an enemy, making it
clear that mere rhetoric or expressions of dissent are not sufficient;
and
•
provide that assistance must enable an enemy ‗to engage in war‘ with
Australia or a country or organisation ‗to engage in armed hostilities‘
against the Australian Defence Force.
8–10
The Australian Government should review the treason offences in s 80.1 of
the Criminal Code.
8–11
Section 80.1 of the Criminal Code should be amended to require that, at the
time of the alleged offence, the person is an Australian citizen or resident.
8–12
Section 80.5 of the Criminal Code regarding the requirement of the
Attorney-General‘s written consent to a prosecution should be repealed.
List of Proposals
11
9.
Urging Inter-Group Violence
9–1
The heading of s 80.2(5) of the Criminal Code (Cth) (Criminal Code) should
be changed to refer to urging ‗inter-group force or violence‘.
9–2
Section 80.2(5) of the Criminal Code should be amended to:
•
insert the word ‗intentionally‘ before the word ‗urges‘, to clarify the
fault element applicable to urging the use of force or violence; and
•
add ‗national origin‘ to the distinguishing features of a group for the
purposes of the offence.
9–3
As a consequence of Proposal 9–2, s 80.2(6) of the Criminal Code should be
amended to apply recklessness to the element of the offence under s 80.2(5)
that it is a group distinguished by national origin that a person urges another
to use force or violence against.
9–4
The Australian Government should continue to pursue other strategies, such
as educational programs, to promote inter-communal harmony and
understanding.
10.
Defences and Penalties
10–1
Section 80.3 of the Criminal Code (Cth) (Criminal Code), concerning the
defence of ‗good faith‘, should be repealed.
10–2
Section 80.2 of the Criminal Code should be amended to provide that in
considering whether a person intends that the urged force or violence will
occur, the trier of fact must take into account whether the conduct was done
(i) in the performance, exhibition or distribution of an artistic work; or (ii) in
the course of any statement, publication, discussion or debate made or held
for any genuine academic, artistic or scientific purpose or any other genuine
purpose in the public interest; or (iii) in connection with an industrial dispute
or an industrial matter; or (iv) in publishing a report or commentary about a
matter of public interest; and may have regard to any relevant matter.
10–3
A note should be inserted after each of the offences in s 80.2(1), (3) and (5)
of the Criminal Code drawing attention to the proposed new provisions
regarding proof of intention that the force or violence urged will occur.
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Review of Sedition Laws
11.
Unlawful Associations
11–1
Sections 30A, 30AA, 30AB, 30B, 30D, 30E, 30F, 30FA, 30FC, 30FD, 30G,
30H and 30R of Part IIA of the Crimes Act 1914 (Cth), concerning unlawful
associations, should be repealed.
11–2
The Australian Government should include ss 30J and 30K of the Crimes Act
1914 (Cth) in the larger review of the Crimes Act called for in Proposal 4–1.
1. Introduction to the Inquiry
Contents
Background to the Inquiry
The Crimes Act provisions on sedition
The Gibbs Committee report 1991
11 September 2001 and beyond
Special COAG meeting in September 2005
The Anti-Terrorism Bill (No 2) 2005
Schedule 7: the new sedition offences
Senate Legal and Constitutional Legislation Committee report
Terms of Reference
Federal criminal law and practice
The reach of federal criminal jurisdiction
The development of a Criminal Code (Cth)
Other features of the federal criminal justice system
Law reform processes
Timeframe
Matters outside this Inquiry
Advisory Committee
Issues Paper 30
Community consultation
Organisation of Discussion Paper 71
Written submissions
13
13
14
15
16
17
18
19
22
22
22
23
26
27
27
28
28
29
29
30
32
Background to the Inquiry
The Crimes Act provisions on sedition
1.1 As described in detail in Chapter 3, the criminal offence of sedition developed in
England in the 17th and 18th centuries, emerging out of the laws against treason and
libel, and aimed at shielding the Crown (and its institutions and officers) from criticism
that might lessen its standing and authority among its subjects.
1.2 Sedition provisions were found in state criminal law from an earlier date, but the
offence entered the federal statute book when ss 24A–24F were inserted into the
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Review of Sedition Laws
Crimes Act 1914 (Cth) in 1920.1 Section 24A(1) originally defined ‗seditious intention‘
as an intention to effect any of the following purposes:
(a)
to bring the Sovereign into hatred or contempt;
(b)
to excite disaffection against the Sovereign or the Government or Constitution
of the United Kingdom or against either House of Parliament of the United
Kingdom;
(c)
to excite disaffection against the Government or Constitution of any of the
King‘s Dominions;
(d)
to excite disaffection against the Government or Constitution of the
Commonwealth or against either House of the Parliament of the
Commonwealth;
(e)
to excite disaffection against the connexion of the King‘s Dominions under the
Crown;
(f)
to excite His Majesty‘s subjects to attempt to procure the alteration, otherwise
than by lawful means, of any matter in the Commonwealth established by law of
the Commonwealth; or
(g)
to promote feelings of ill-will and hostility between different classes of His
Majesty‘s subjects so as to endanger the peace, order or good government of the
Commonwealth.2
1.3 Sections 24C and 24D created offences for various acts done with a seditious
intention, with a maximum penalty of imprisonment for three years. Section 24F
created a number of specific defences for acts done in ‗good faith‘.
1.4 In 1986, following the recommendations of the Hope Royal Commission, the
Intelligence and Security (Consequential Amendments) Act 1986 (Cth) amended the
sedition provisions in the Crimes Act: (1) to make clear that that the prosecution carried
the burden of proving that an accused had a ‗seditious intention‘ in relation to the
offences in ss 24C–24D; and (2) to delete ss 24A(b), (c) and (e), which referred to
exciting disaffection in the United Kingdom or the King‘s Dominions.
The Gibbs Committee report 1991
1.5 In 1991, the Committee of Review of Commonwealth Criminal Law chaired by
former Chief Justice Sir Harry Gibbs (the Gibbs Committee) considered the sedition
provisions in ss 24A–24F of the Crimes Act.3 In a preceding discussion paper, the
Gibbs Committee expressed the view that those provisions were couched in archaic
1
2
3
War Precautions Repeal Act 1920 (Cth) s 12. These provisions mirrored those in the Criminal Code 1899
(Qld), which were themselves based on the British common law as outlined in Stephen’s Digest of the
Criminal Law: Commonwealth, Parliamentary Debates, House of Representatives, 23 November 1920,
6851 (L Groom), 6851. See Ch 3 for further discussion.
The High Court upheld the validity of these provisions in R v Sharkey (1949) 79 CLR 121, with Dixon J
dissenting in relation to s 24A(1)(g).
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991).
1. Introduction to the Inquiry
15
language and required modernisation and simplification—but should then be retained
in the Crimes Act.4
1.6 In its Fifth Interim Report, the Gibbs Committee confirmed this criticism, noting
that the definition of ‗seditious intention‘ was ‗expressed in archaic terms and [was]
misleadingly wide‘.5 However, the Gibbs Committee confirmed its view that
Commonwealth law must continue to make it an offence to incite the overthrow or
supplanting by force or violence of the government or the Constitution.
1.7 The Gibbs Committee also recognised Australia‘s international obligations
under art 20 of the International Covenant on Civil and Political Rights 1966 and art 4
of the International Convention on the Elimination of All Forms of Racial
Discrimination 1966 to prohibit incitement to national, racial and religious hatred (see
Chapters 5 and 9).6
1.8 Consequently, the Gibbs Committee‘s final recommendation was that it be made
an offence, punishable by a maximum of seven years‘ imprisonment:
to incite by any form of communication:
(a)
the overthrow or supplanting by force or violence of the Constitution or the
established Government of the Commonwealth or the lawful authority of that
Government in respect of the whole or part of its territory;
(b)
the interference by force or violence with the lawful processes for Parliamentary
elections; or
(c)
the use of force or violence by groups within the community, whether
distinguished by nationality, race or religion, against other such groups or
members thereof.7
11 September 2001 and beyond
1.9 Although many textbooks and commentaries on Australian law had pronounced
the crime of sedition (and related variations) to be ‗archaic‘ and ‗defunct‘, more recent
concerns about the national and international security environment have literally put
the matter back on the front page—particularly in the aftermath of the terrorist attacks
on New York and Washington on 11 September 2001, and the Bali (12 October 2002),
Madrid (11 March 2004) and London (7 July 2005) bombings. The latter attack
introduced a new dimension to debates about counter-terrorism: the possible presence
in western countries of ‗home grown‘ terrorists and suicide bombers, and the degree to
4
5
6
7
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Offences Relating to the
Security and Defence of the Commonwealth, Discussion Paper No 8 (1988), 17.
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991), [32.13].
Ibid, [32.17].
Ibid, [32.18].
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Review of Sedition Laws
which this might warrant increased domestic surveillance and police powers, as well as
criminal offences specifically tailored to cover this area.
Special COAG meeting in September 2005
1.10 At the Special Meeting of the Council of Australian Governments (COAG)
convened on 27 September 2005 by the Prime Minister, the Hon John Howard MP, the
participants were briefed on the international and national security environment by the
Directors-General of the Office of National Assessments and the Australian Security
Intelligence Organisation (ASIO). After further discussion and a consideration of the
risks of a terrorist attack occurring in Australia, the federal, state and territory leaders
agreed in principle to cooperate in matters of counter-terrorism and to introduce a
common package of legislative measures.
1.11 At the end of the meeting a communiqué was issued setting out the agreed
outcomes of the discussions.8 These included: (a) the development of a National
Emergency Protocol; (b) continued high priority to be given to the security of mass
passenger transport; (c) the development of a national approach to the use of closed
circuit television (CCTV) in support of counter-terrorism arrangements; (d) the
development of a National Action Plan to combat intolerance and communal violence;
(e) improvements to aviation security; (f) the development of a national identity
security strategy to combat identity fraud and theft; (g) improvements to private
security arrangements, particularly where these impact on Australia‘s counter-terrorism
arrangements; (h) revision of the first National Counter-Terrorism Plan (2003), which
sets out the collaborative arrangements in place for preventing, preparing for and
responding to terrorist incidents within Australia; (i) emphasising the importance of
Australia‘s current regime of regular counter-terrorism exercises at the national, state
and territory levels; (j) promoting public understanding of, and confidence in, the
national counter-terrorism arrangements and putting in place arrangements to provide
the community, business and the media with timely information during a crisis; and (k)
development of a national chemical, biological, radiological and nuclear security
strategy focused on prevention, preparedness, response and recovery.
1.12 Another key aspect of the Special Meeting was the discussion about the
adequacy of existing counter-terrorism laws. COAG noted ‗the evolving security
environment in the context of the terrorist attacks in London in July 2005‘ and agreed
there was ‗a clear case for Australia‘s counter-terrorism laws to be strengthened‘, with
the proviso that:
any strengthened counter-terrorism laws must be necessary, effective against
terrorism and contain appropriate safeguards against abuse, such as parliamentary and
judicial review, and be exercised in a way that is evidence-based, intelligence-led and
proportionate.
8
Council of Australian Governments (COAG), Council of Australian Government’s Communique—
Special Meeting on Counter-Terrorism (2005) <http://www.coag.gov.au/meetings/270905/> at 12
January 2006.
1. Introduction to the Inquiry
17
1.13 State and territory leaders agreed with the Commonwealth that the Criminal
Code (Cth) should be amended in a number of respects, including amendments to
provide for:
•
‗control orders‘ and ‗preventative detention‘ for up to 48 hours, to restrict the
movement of those thought to pose a terrorist risk to the community;
•
the expansion the Commonwealth‘s ability to proscribe terrorist organisations
that advocate terrorism; and
•
‗other improvements … including to the financing of terrorism offence‘.
1.14 State and territory leaders also noted that they would be consulted by the
Commonwealth in relation to:
•
proposed amendments to Part IIIAAA of the Defence Act 1903 (Cth) to enhance
and clarify the arrangements for calling-out the Australian Defence Force to
assist civilian authorities; and
•
the possible enactment of laws to prevent the use of non-profit or charitable
organisations for the ulterior purpose of financing terrorist activities.
1.15 Apart from the inherent desirability of developing an integrated, national
approach to counter-terrorism, one of the underlying reasons for convening the Special
Meeting of COAG was that inter-jurisdictional cooperation was needed because most
aspects of criminal law and police powers fall to the states and territories under the
Australian Constitution. For example, because of constitutional constraints, the
Commonwealth could not itself enact such measures as: (a) preventative detention of
suspected terrorists; and (b) stop, question and search powers in areas such as transport
hubs and places of mass gatherings.
1.16 Commonwealth, state and territory leaders also agreed that these new laws
would be reviewed after five years, and that the legislation would include 10 year
‗sunset clauses‘.
The Anti-Terrorism Bill (No 2) 2005
1.17 The Anti-Terrorism Bill (No 2) 2005 (Cth) was introduced into the Australian
Parliament on 3 November 2005. Key features of the Bill included:
•
expansion of the grounds for the proscription of terrorist organisations to include
organisations that ‗advocate‘ terrorism (Schedule 1);
18
Review of Sedition Laws
•
a new offence of financing terrorism (Schedule 3) and increased financial
transaction reporting obligations on individuals and businesses (Schedule 9);
•
a new regime to allow for the imposition of ‗control orders‘ (subject to review
after a period of up to one year) that place restrictions on the movements and
associations of a person suspected of involvement in terrorist activity and
authorise their close monitoring (Schedule 4);
•
a new preventative detention regime to allow police to detain a person without
charge for the purposes of interrogation by ASIO, to prevent a terrorist act or to
preserve evidence of such an act—with limited ability to disclose such
detention, and severe penalties for unlawful disclosure (Schedule 4);
•
expanded police powers for warrantless searches and seizures
‗Commonwealth places‘ and in ‗prescribed security zones‘ (Schedule 5);
•
police powers to compel disclosure of commercial and personal information
(Schedule 6);
•
further expansion of information and intelligence gathering powers available to
police forces and to ASIO (Schedules 8 and 10); and
•
modernisation of the old sedition offences, as recommended by the Gibbs
Committee a decade earlier, by replacing them with a suite of five offences built
around the basic concept of prohibiting a person from ‗urging‘ others to use
‗force or violence‘ in a number of prescribed contexts—and with a specific
defence of ‗good faith‘ (Schedule 7).
in
Schedule 7: the new sedition offences
1.18 The recommendations of the Gibbs Committee were expressly acknowledged as
influencing the drafting of the new sedition offences in late 2005. The Explanatory
Memorandum accompanying the Anti-Terrorism Bill (No 2) 2005 (Cth) noted that:
The inclusion of sedition in the Criminal Code is consistent with the general policy of
moving serious offences to the new Criminal Code when they are updated. These
offences have been update[d] in line with a number of recommendations of Sir Harry
Gibbs in the Review of Commonwealth Criminal Law, Fifth Interim Report, June
1991 (the Gibbs Report).9
1.19 Similarly, in his Second Reading Speech, the Attorney-General, the Hon Philip
Ruddock MP, noted that ‗the sedition amendments are modernising the language of the
provisions and are not a wholesale revision of the sedition offence‘.10
9
10
Explanatory Memorandum, Anti-Terrorism Bill (No 2) 2005 (Cth), 88.
Commonwealth, Parliamentary Debates, House of Representatives, 3 November 2005, 102
(P Ruddock—Attorney-General), 103.
1. Introduction to the Inquiry
19
1.20 The Attorney-General also stated that the provisions were the product of
extensive consultation with national leaders and senior government officers at all levels
through the COAG process, and were needed
to ensure that we have the toughest laws possible to prosecute those responsible
should a terrorist attack occur.
Second and of equal importance, the bill ensures we are in the strongest position
possible to prevent new and emerging threats, to stop terrorists carrying out their
intended acts.11
1.21 In relation to the sedition provisions in particular, the Attorney-General further
noted that:
The bill also addresses those in our community who incite terrorist acts.
It does this by expanding upon the Australian government‘s ability to proscribe
terrorist organisations that advocate terrorism and also updates the sedition offence.
The updated sedition offence will address problems with those who incite directly
against other groups within our community.12
Senate Legal and Constitutional Legislation Committee report
1.22 On 3 November 2005, the Senate referred the provisions of the Anti-Terrorism
Bill (No 2) 2005 to the Senate Legal and Constitutional Legislation Committee (the
Senate Committee inquiry) for inquiry and report by 28 November 2005.
1.23 The Senate Committee inquiry, chaired by Senator Marise Payne, held three
days of public hearings in Sydney in mid-November 2005 and—indicative of the high
level of public interest—received nearly 300 written submissions.
1.24 In relation to the security environment, the Senate Committee inquiry noted that
it had been advised by the Director-General of ASIO, Mr Paul O‘Sullivan, that:
It is a matter of public record that Australian interests are at threat from terrorists. It is
also a matter of public record that ASIO has assessed that a terrorist attack in
Australia is feasible and could well occur. ... [T]he threat has not abated and we need
to continue the work of identifying people intent on doing harm, whether they are
already in our community, seeking to come here from overseas or seeking to attack
Australian interests overseas. I would also point out that the nature of the threat we
face is not static. Just as terrorist organisations and groups learn from past experience
and adapt to counter the measures that governments implement, so also do we need to
continually revise the way we go about the business of countering terrorist threats.
Part of that process involves ensuring that the legislative framework under which we
operate is commensurate with the threat we face.13
11
12
13
Ibid, 102.
Ibid, 103.
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [2.7].
20
Review of Sedition Laws
1.25 Similarly, the Australian Federal Police argued before the Senate Committee
inquiry that the clandestine nature of terrorism activity and its catastrophic
consequences mandated enhanced powers and new tools for police and intelligence
agencies.
Together, the proposals for control orders, preventative detention and stop, search and
seizure powers represent additional powers for police to deal with situations that are
not covered by the existing legal framework. Since the events of 2001, the AFP and
other agencies have been in constant dialogue with the government on the
appropriateness of the legal framework for preventing and investigating terrorism as
our understanding of the terrorist environment has developed. … The proposals in the
bill … address limitations in that framework which have become apparent recently, in
particular the need for the AFP to be able to protect the community where there is not
enough evidence to arrest and charge suspected terrorists but law enforcement has a
reasonable suspicion that terrorist activities may be imminent or where an act has
occurred.14
1.26 The Committee‘s report defined its role in the following terms:
No witnesses questioned the responsibility of the government to evaluate national
security information and to make a judgment about the actual level of threat to
Australia. However, many questioned whether the obligation to protect the
community justifies creating a separate system to deal with ‗terrorist suspects‘ who
may otherwise be dealt with by the criminal justice system. … [Submissions] and
witnesses urged the committee to consider: whether the current Bill is necessary to
combat terrorism; whether existing powers and offences are sufficient to deal with
acts of terrorism and related activity; and whether the removal of traditional
safeguards is a proportionate response.15
1.27 The report made 51 recommendations for amendment to the Bill, with a final
recommendation to pass the Bill if the Committee‘s recommendations were taken up
by the Government.16 Most recommendations had substantial cross-party support,
although a dissenting report was filed by Greens Senators Bob Brown and Kerry
Nettle;17 additional comments were supplied by Labor Senator Linda Kirk;18 and
additional comments and a partial dissent were supplied by Australian Democrats
Senator Natasha Stott Despoja.19
1.28 In relation to Schedule 7, dealing with sedition laws, the Committee made these
four recommendations:
Recommendation 27. The committee recommends that Schedule 7 be removed from
the Bill in its entirety.20
14
15
16
17
18
19
20
Ibid, [2.9].
Ibid, [2.6].
Ibid.
Ibid, 195–198.
Ibid, 199–201.
Ibid, 203–214.
Ibid, [5.173].
1. Introduction to the Inquiry
21
Recommendation 28. The committee recommends that the Australian Law Reform
Commission conduct a public inquiry into the appropriate legislative vehicle for
addressing the issue of incitement to terrorism. This review should examine, among
other matters, the need for sedition provisions such as those contained in Schedule 7,
as well as the existing offences against the government and Constitution in Part II and
Part IIA of the Crimes Act 1914.21
Recommendation 29. If the above recommendation to remove Schedule 7 from the
Bill is not accepted, the committee recommends that:
•
proposed subsections 80.2(7) and 80.2(8) in Schedule 7 be amended to
require a link to force or violence and to remove the phrase ‗by any means
whatever‘;
•
all offences in proposed section 80.2 in Schedule 7 be amended to expressly
require intentional urging; and
•
proposed section 80.3 (the defence for acts done ‗in good faith‘) in
Schedule 7 be amended to remove the words ‗in good faith‘ and extend the
defence to include statements for journalistic, educational, artistic,
scientific, religious or public interest purposes (along the lines of the
defence in section 18D of the Racial Discrimination Act 1975).22
Recommendation 30. The committee recommends that the amendments in
Schedule 1 of the Bill, relating to advocacy of terrorism, be included in the proposed
review by the Australian Law Reform Commission as recommended above in relation
to Schedule 7.23
1.29 The Government accepted a significant proportion of the recommendations in
the Committee‘s report, and these were reflected in the final version of the Bill. The
Act was passed into law on 6 December 2005—with only Green and Australian
Democrat Senators voting against it—and entered into force on 11 January 2006.
1.30 The Government did not accept Recommendation 27, to remove Schedule 7
from the Bill in its entirety. Instead, some recommended changes were made to the
wording of the offences and the defence in Schedule 7 (see Chapter 4), and the
Attorney-General confirmed his earlier undertakings that, ‗given the considerable
interest in the provisions‘, they would be subject to a review.24 Ultimately, the
Attorney-General decided that this independent public inquiry should be conducted by
the ALRC.
21
22
23
24
Ibid, [5.174].
Ibid, [5.176].
Ibid, [5.233].
Including in his Second Reading Speech on the Bill: Commonwealth, Parliamentary Debates, House of
Representatives, 3 November 2005, 102 (P Ruddock—Attorney-General), 103.
22
Review of Sedition Laws
Terms of Reference
1.31 On 1 March 2006, the Attorney-General, the Hon Philip Ruddock MP, signed
Terms of Reference asking the ALRC to conduct a review of the operation of
Schedule 7 of the Anti-Terrorism Act (No 2) 2005 (Cth) and Part IIA of the Crimes Act,
with respect to the recently amended provisions dealing with the offence of sedition
and related matters, and to report by 30 May 2006. The Attorney-General announced
the review on 2 March 2006.
1.32 The Terms of Reference, which are reproduced at the front of this publication,
direct the ALRC to consider:
•
the circumstances in which individuals or organisations intentionally urge others
to use force or violence against any group within the community, against
Australians overseas, against Australia‘s forces overseas or in support of an
enemy at war with Australia; and
•
the practical difficulties involved in proving a specific intention to urge violence
or acts of terrorism.
1.33 In performing its functions in relation to this reference, the ALRC is asked to
have particular regard to:
(a)
whether the amendments in Schedule 7 of the Anti-Terrorism Act (No 2)
2005, including the sedition offence and defences in sections 80.2 and
80.3 of the Criminal Code, effectively address the problem of urging the
use of force or violence;
(b)
whether ‗sedition‘ is the appropriate term to identify this conduct;
(c)
whether Part IIA of the Crimes Act, as amended, is effective to address
the problem of organisations that advocate or encourage the use of force
or violence to achieve political objectives; and
(d)
any related matter.
Federal criminal law and practice
The reach of federal criminal jurisdiction
1.34 Given the constitutional constraints in Australia, criminal law and procedure is
largely, but not entirely, a matter for the states and territories.25 The great bulk of
‗standard criminal law‘—that is, the matters that most members of the community
25
The ALRC is also currently inquiring into the sentencing and administration of federal offenders; see
Australian Law Reform Commission, Sentencing of Federal Offenders, DP 70 (2005).
1. Introduction to the Inquiry
23
think of as ‗crime‘: homicide, assault, sexual assault, robbery, break and enter, and so
on—is dealt with by state and territory courts applying state and territory law.
1.35 Federal legislative activity in this field generally must be underpinned by one of
the specific heads of power provided to the Commonwealth under the Australian
Constitution—for example, the incidental power or the external affairs power. Put
simply, federal criminal law tends to: (a) be concerned with harm to Australian
government property or officials, or to the revenue (eg, taxation or social security
frauds); (b) have a clear interstate or international dimension (eg, postal and
telegraphic offences; or importing/exporting prohibited goods or substances); or
(c) fulfil an obligation pursuant to an international treaty to which Australia is a party
(eg, prohibitions on slavery, war crimes and genocide).
1.36 Some areas of activity will give rise to overlapping federal and state or territory
jurisdiction. For example, all states and territories have laws prohibiting aspects of the
manufacture, possession or distribution of illegal drugs, while there are federal laws
prohibiting the import and export of illegal drugs. In this area it is not unusual for there
to be joint federal and state police investigations leading to a single trial, with
indictments for beach of both federal and state law.
1.37 As becomes evident in Chapter 4, there are substantial intersections between
federal law and state and territory criminal laws in the area covered by the new sedition
offences in s 80.2. In particular cases there may be a direct overlap of federal, state or
territory sedition laws, or there may be an indirect overlap—for example, where the
same facts would satisfy the elements of a federal sedition offence and also would
constitute a breach of a state or territory criminal law, such as assault, riot or affray.
1.38 Every jurisdiction except South Australia and the ACT has a law prohibiting
sedition, and all jurisdictions have laws against treason. Section 80.6 of the Criminal
Code expressly provides that it is not the intention of the Division 80, covering treason
and sedition, to exclude state or territory law.
The development of a Criminal Code (Cth)
The Gibbs Committee and MCCOC
1.39 The Crimes Act 1914 (Cth) served for a long time as the principal piece of
legislation dealing with federal criminal law. Many other federal statutes also proscribe
certain conduct and specify a criminal penalty—for example, as discussed in
Chapter 8, the Commonwealth Electoral Act 1918 (Cth) s 327 prohibits a person from
hindering or interfering with the free exercise of any political right or duty relevant to a
parliamentary election. As a general rule, the Crimes Act contained the more serious
and general offences, while the other federal offences created in specific pieces of
legislation tended to be incidental to the regulation of a particular field (such as
customs, environmental protection, corporate compliance and revenue collection).
24
Review of Sedition Laws
Most, but not all, of the latter offences may be heard summarily, and carry smaller
maximum penalties (generally, under 12 months imprisonment).
1.40 In 1987, a Committee of Review of Commonwealth Criminal Law was
established, chaired by retired Chief Justice Sir Harry Gibbs (and widely known as ‗the
Gibbs Committee‘). The Gibbs Committee produced five interim reports on a range of
matters, including: computer crime (1988); detention before charge (1989); general
principles of criminal responsibility (1990); offences against the administration of
justice and property crime (1990); and arrest, sentencing, forgery and offences relating
to the security and defence of the Commonwealth (1991). A final report was delivered
in late 1991. The Gibbs Committee was successful in producing a number of
amendments to the Crimes Act, including those dealing with computer crime and
police powers of investigation.
1.41 As noted above, the Fifth Interim Report of the Gibbs Committee considered
and made recommendations for reform of the Crimes Act provisions dealing with
treason, sedition and unlawful associations.26
1.42 In July 1990, the Standing Committee of Attorneys-General (SCAG) established
the Model Criminal Code Officers Committee (MCCOC), with a brief to modernise
and harmonise criminal law across Australia through the development of a Model
Criminal Code. The MCCOC process produced a series of discussion papers, final
reports and recommended Model Criminal Code chapters over the next decade. More
recently, MCCOC considered the question of double jeopardy.
1.43 Although the MCCOC process has not produced a uniform, national Criminal
Code (such as applies in the Canadian federation), all Australian states and territories
have enacted parts of the Model Code.27
The Criminal Code
1.44 The Criminal Code was introduced into federal law (and applicable to external
territories) as a Schedule to the Criminal Code Act 1995 (Cth), which entered into
force on 1 January 1997.
1.45 The basic policy of the Australian Government now is that the Criminal Code is
the principal piece of federal legislation containing serious criminal offences.
Substantive criminal provisions contained in other, older pieces of law—including, or
perhaps especially, the Crimes Act—progressively should be reviewed, and either
‗modernised‘ and ‗migrated‘ to the Criminal Code, or repealed. Ultimately, the Crimes
26
27
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991), chapters 31, 32 and 38, respectively.
The influence of the Model Code has been most marked in the Commonwealth, New South Wales, the
ACT, and South Australia; the Model Code has been less influential in the jurisdictions that already have
a criminal code, based on Sir Samuel Griffith‘s late 19th century model—Queensland, Western Australia
and Tasmania.
1. Introduction to the Inquiry
25
Act will be left covering matters of police powers (such as arrest, detention, search and
seizure, forensic procedures) and criminal procedure.28
1.46 Underlying this process is the desire to keep the federal criminal statute book
‗fresh‘—utilising modern drafting techniques, providing greater uniformity of
language and concepts, and ensuring that the law keeps abreast of contemporary
circumstances, attitudes and concerns.
1.47 This background is important for the current Inquiry because treason was
‗modernised and migrated‘ to the Criminal Code in 2002, and sedition in 2005. A
comprehensive set of provisions governing ‗terrorist organisations‘ was inserted into
the Criminal Code in 2002, leaving behind the rarely used Part IIA of the Crimes Act,
on ‗unlawful associations‘. In essence, the technical side of this Inquiry is to examine
the effectiveness of these efforts at modernising these old areas of the criminal law.
Criminal responsibility under the Code
1.48 Another feature of the Criminal Code of particular importance for this Inquiry is
that Chapter 2 of the Code provides a set of general principles of criminal
responsibility that permeate the rest of the Code—and, indeed, must be read together
with the criminal provisions in any other piece of federal legislation.
1.49 For example, Chapter 2, Division 5 standardises and defines the fault elements
(mens rea in common law crime) to be applied to any offence—intention, knowledge,
recklessness or negligence. The definition of ‗recklessness‘ in s 5.4, for the purposes of
determining criminal liability, gives the term a meaning closer to ‗intention‘ than to
‗negligence‘, requiring that the actor: (a) must be aware there is a substantial risk his or
her conduct will bring about the prohibited result, and (b) it is unjustifiable to take that
risk in the circumstances.
1.50 As discussed in Chapter 8 of this Discussion Paper, a large number of the
submissions to the 2005 Senate Committee inquiry—and to a significant but lesser
extent to the present Inquiry—strongly, but incorrectly as a technical matter, objected
to the use of a ‗recklessness‘ element in the new sedition offences in the Criminal
Code.29 The concern commonly expressed was that a person should not be liable to be
convicted of such a serious offence by blundering into such activities. However, the
Code definition makes plain that this could not be the case.
28
29
The ALRC has proposed that all matters relating to sentencing also be removed from the Crimes Act, and
collected in a dedicated federal Sentencing Act: see Australian Law Reform Commission, Sentencing of
Federal Offenders, Discussion Paper 70 (2005) Proposal 2–1.
See Criminal Code s 80.2(2), (4) and (6).
26
Review of Sedition Laws
1.51 Chapter 2, Divisions 7–10 of the Criminal Code cover the circumstances in
which criminal responsibility should not be attributed,30 and Division 11 covers
extensions to criminal responsibility, such as attempt (s 11.1), complicity and common
purpose (s 11.2), incitement (s 11.4) and conspiracy (s 11.5). Division 13 reinforces the
common law position that the prosecution bears the onus of proving every element of
an offence beyond reasonable doubt.
Other features of the federal criminal justice system
1.52 A number of other features of the federal criminal justice system are worth
highlighting. As noted above, state and territory courts deal with the overwhelming
majority of federal criminal matters (whether summarily or upon indictment), and in so
doing they normally apply their own practices and procedures. As there are no federal
prisons, federal offenders sentenced to a term of imprisonment serve their time in a
state or territory-administered custodial institution.31
1.53 Section 80 of the Australian Constitution provides that:
The trial on indictment of any offence against any law of the Commonwealth shall be
by jury, and every such trial shall be held in the State where the offence was
committed, and if the offence was not committed within any State the trial shall be
held at such place or places as the Parliament prescribes. [Emphasis added]
1.54 Section 80 has two important consequences for persons charged with a federal
offence. First, every trial for an indictable offence must be conducted before a jury—
whereas the state and territory law often provides for the waiver of a jury trial in
certain circumstances, with the trial proceeding before a judge alone. Secondly, as
interpreted, s 80 requires that the jury reach a unanimous verdict32 in a federal criminal
trial—whereas some states and territories allow for a majority verdict in certain
circumstances—and that jurors should not be pressured to reach unanimous
agreement.33
1.55 The discretion about whether to prosecute serious criminal charges is exercised by
the Commonwealth Director of Public Prosecutions (DPP). The DPP is a statutory
officeholder, with a very high degree of independence afforded to that office by
statute34 and by legal culture and tradition. In the normal course of things, the
investigating authority (such as the Australian Federal Police) will provide the DPP
with a brief of evidence, upon which the DPP will determine—according to its
30
31
32
33
34
Such as in the case of a young child (s 7.1); or a person suffering from a serious mental impairment
(s 7.3); or where a person is acting in self-defence (s 10.4), under duress (s 10.2), in response to a sudden
and extraordinary emergency (s 10.3), under a claim of right to property (s 9.5) or is exercising lawful
authority (s 10.5).
See ALRC, Sentencing of Federal Offenders (ALRC Discussion Paper 70, 2005).
Cheatle v The Queen (1993) 177 CLR 541, 551-2.
Black v The Queen (1993) 179 CLR 44.
Director of Public Prosecutions Act 1983 (Cth).
1. Introduction to the Inquiry
27
published guidelines35—whether there is sufficient probative evidence to proceed, and
whether launching a prosecution would be in the public interest.
1.56 Although the law36 provides that the Attorney-General may, after proper
consultation, issue a guideline or direction to the DPP—which must be tabled in
Parliament and published in the Gazette—this never happens in practice.37
1.57 Finally, the DPP has the power to take over any criminal proceeding (summary
or indictable) instituted by another person, and then ‗may decline to carry it on
further‘.38 Thus, there is very little risk in practice of a private prosecution for treason
or sedition—if the allegations have substance, the DPP would take over and proceed; if
the action is without foundation, is contrary to the public interest, or was instituted to
harass or intimidate an accused, then the DPP could be expected to take over promptly
and terminate the proceedings.
Law reform processes
Timeframe
1.58 Most ALRC inquiries take one or more years to complete. In the current inquiry,
the ALRC has been asked to report within three months. This presents some obvious
challenges for the ALRC to manage—mainly in terms of ensuring adequate time for
consultation and for conducting the necessary research and writing in-house.
1.59 Notwithstanding the tight timeframe, the ALRC determined to adopt its standard
processes, which have been developed over time and build in mechanisms to
encourage widespread community engagement with the law reform process and allow
for the careful development of public policy. This normally involves the production of
two community consultation documents (an Issues Paper and a Discussion Paper)
before proceeding to a final report with recommendations for reform.
1.60 The ALRC respects the Australian Government‘s expressed desire for prompt
advice on the effectiveness (or otherwise) of the current sedition laws, and has
endeavoured to move as quickly as possible. The issues in question here, although
difficult and important, are narrower than is the case with most ALRC inquiries.
Further, the ALRC has had the benefit of the report of the 2005 Senate Committee
inquiry—and the nearly 300 submissions made to that inquiry—which has reduced the
typical learning curve.
35
36
37
38
Commonwealth Director of Public Prosecutions, The Prosecution Policy of the Commonwealth
<www.cdpp.gov.au/Prosecutions/Policy/Default.aspx> at 11 March 2006.
Director of Public Prosecutions Act 1983 (Cth), s 8.
Commonwealth Director of Public Prosecutions, Consultation, Canberra, 26 April 2006.
Director of Public Prosecutions Act 1983 (Cth), s 9(5).
28
Review of Sedition Laws
1.61 Nevertheless, accommodating the need for widespread and meaningful
consultation on matters of public interest has resulted in the ALRC producing this
Discussion Paper at the three-month mark. Allowing appropriate time for written
submissions and other feedback to be submitted, and then considered, means that the
final report and recommendations likely will be completed in late July.
Matters outside this Inquiry
1.62 The scope of the ALRC‘s inquiry is limited both by its formal Terms of
Reference and by the practical necessity of demarcating a work program that is
coherent and achievable in the limited time available.
1.63 The ALRC is not examining a range of issues that arise in discussions about the
contemporary legislative and policy response to matters of national and international
security. For the avoidance of doubt, issues not included within the current Terms of
Reference include:
•
the recent increases in the powers of ASIO and other intelligence and law
enforcement authorities to detain suspects and others for questioning in
connection with the planning or execution of terrorist activity;
•
the powers of intelligence and law enforcement authorities to conduct electronic
surveillance or interception, with appropriate approval;
•
the new powers to make preventative detention and control orders;
•
the handling of classified and security sensitive information by Australian courts
and tribunals;39 and
•
the use of executive authority to refuse, withdraw or cancel passports or visas,
based upon security concerns.
Advisory Committee
1.64 It is standard operating procedure for the ALRC to establish a broad based
Advisory Committee, or ‗reference group‘, to assist with the development of its
inquiries.
1.65 Advisory Committees provide advice and assistance to the ALRC, and have
particular value in helping the ALRC to identify the key issues and determine
priorities, providing quality assurance in the research, writing and consultation effort,
and assisting with the development of proposals and recommendations for reform as
39
This area was covered in Australian Law Reform Commission, Keeping Secrets: The Protection of
Classified and Security Sensitive Information, ALRC 98 (2004), which the Australian Government has
substantially implemented.
1. Introduction to the Inquiry
the inquiry progresses. Ultimate responsibility for the final report
recommendations, of course, remains with the Commissioners of the ALRC.
29
and
1.66 The membership of the Advisory Committee for this inquiry is drawn from the
Bench, the Bar, the academy, media organisations, civil liberties groups, human rights
and equal opportunity commissioners, and includes a current and former
Commonwealth Director of Public Prosecutions. The full membership is detailed in the
List of Participants at the front of this publication. The Advisory Committee had its
first meeting on 11 May 2006, to consider the proposals contained in this document. It
is expected that a second (and final) meeting will be held before the completion of the
final report, to consider the draft recommendations for reform.
Issues Paper 30
1.67 Review of Sedition Laws (ALRC Issues Paper 30, 2006) (IP 30) was released
electronically on 20 March 2006 (and about a week later in hard copy format), in order
to commence the community consultation process on an informed basis.
1.68 IP 30 was organised into seven chapters. It included a significant amount of
background and historical material, and outlined the current state of the federal law on
sedition and unlawful associations following the amendments in late 2005, as well as
related federal laws and relevant state and territory legislation.
1.69 IP 30 surveyed the relevant international law in this area, including United
Nations conventions, declarations and resolutions, and also provided some comparative
perspectives from the laws in a number of other countries—especially common law
countries with similar systems and traditions, and the European Union, which has
developed jurisprudence in this field.
1.70 IP 30 set out 24 key questions that the ALRC identified as arising out of the
Terms of Reference, and which required comment before the ALRC could formulate
the proposals for reform contained in this Discussion Paper—which are now presented
for further community debate and discussion.
Community consultation
1.71 The Terms of Reference indicate that the ALRC ‗will identify and consult with
relevant stakeholders‘. Under the provisions of the Australian Law Reform
Commission Act 1996 (Cth), the ALRC ‗may inform itself in any way it thinks fit‘ for
the purposes of reviewing or considering anything that is the subject of an inquiry.40
40
Australian Law Reform Commission Act 1996 (Cth) s 38.
30
Review of Sedition Laws
1.72 One of the most important features of ALRC inquiries is the commitment to
widespread community consultation.41 The nature and extent of this engagement
normally will be determined by the subject matter of the reference—particularly
whether the topic is regarded as a technical one, of interest largely to specialists in the
field, or is a matter of interest and concern to the broader community. The ALRC
regards this particular inquiry as clearly falling in the latter category.
1.73 The ALRC has developed a broad consultation strategy for this inquiry, so far as
time permits, which encourages participation from a wide spectrum of stakeholders,
including: community groups; prosecution and law enforcement agencies; criminal
defence lawyers; judges; government lawyers and officials; media organisations and
peak associations; legal professional associations; human rights and civil liberties
groups; academics; and others.
1.74 To date, the ALRC has received 64 written submissions and conducted
19 consultation meetings (many of them multi-party). Lists of the submissions and
consultations are set out in Appendices 3 and 4, respectively.
Organisation of Discussion Paper 71
1.75 This Discussion Paper is organised into 11 chapters—although proposals for
reform are not spread evenly throughout. Some chapters provide mainly contextual
material, while others are more focused on the ‗nuts and bolts‘ of the elements of the
law.
1.76 In order to clarify the current and proposed state of the law, Appendix 1 sets out
the existing provisions in Division 80 of the Criminal Code on treason and sedition,
which are under consideration. Appendix 2 shows how those provisions would look if
the Government were to adopt the ALRC‘s proposals for reform. As noted above,
Appendices 3 and 4 document the public consultation effort to date, including meetings
and written submissions. Appendix 5 provides a list of the common abbreviations used
in this Discussion Paper.
1.77 Chapter 2 effectively serves as the ‗executive summary‘ for this document, but
also makes a number of proposals central to the ALRC‘s handling of this Inquiry. The
chapter considers the case for reform of the law of sedition generally—including the
proposed abolition of the term ‗sedition‘ from the Australian statute book—and
explains the principles and assumptions that underlie the pattern of proposals for
reform of the substantive offences against political liberty and public order.
1.78 Chapter 3 provides a history of the law of sedition and related offences, as it
evolved from its early origins in England many centuries ago, through to its inclusion
in the Crimes Act in 1920, and then to more modern formulations and variations.
41
B Opeskin, ‗Engaging the Public: Community Participation in the Genetic Information Inquiry‘ (2002) 80
Reform 53.
1. Introduction to the Inquiry
31
1.79 Chapter 4 outlines the current state of the law on sedition and unlawful
associations in Australia, following the amendments made in November 2005. The
chapter also describes related aspects of federal law and highlights some of the gaps
and overlaps between sedition and other relevant offences (such as treason, treachery
and incitement to crime), as well as considering related state and territory laws.
1.80 Chapter 5 provides the international framework—highlighting Australia‘s
international human rights obligations under the International Covenant on Civil and
Political Rights 1966 and other relevant United Nations conventions, declarations and
resolutions; and considering the extent to which these influence Australian domestic
law. Chapter 6 offers a comparative view, surveying contemporary sedition laws in a
number of other countries—especially common law countries with similar systems and
traditions, and the European Union.
1.81 Chapter 7 considers the important matter of the protection of freedom of
expression in Australian law, ranging from implied constitutional rights to free political
speech in a democratic society, to statutes and cases that bear directly on individual
and press freedoms.
1.82 Chapter 8 sets out the details of the ALRC‘s proposed scheme for reframing the
two ‗urging force or violence‘ offences in s 80.2(1) and (3) of the Criminal Code, and
restructuring the two ‗assisting the enemy‘ offences in s 80.2(7) and (8) of the Code—
by including those offences, in a modified form, into the offence of treason in s 80.1. In
all cases, the fault elements of the offences have been clarified to accord with the
serious nature of the crimes and to minimise any impact on freedom of expression.
Chapter 8 also considers such ancillary matters as the extra-territorial application of
these offences, and the existing requirement to obtain the Attorney-General‘s written
consent to proceed with a prosecution.
1.83 Chapter 9 sets out the ALRC‘s proposed scheme for reframing the offence of
urging inter-group violence, contained in s 80.2(5) of the Criminal Code. The chapter
also considers other federal, state and territory laws dealing with concepts of racial
hatred and racial or religious vilification.
1.84 Chapter 10 looks at the ‗good faith defence‘ to charges of treason and sedition
currently provided by s 80.3 of the Criminal Code, as well as considering alternative
models and concepts, and also examines the penalties for the various offences in
Division 80.
1.85 Finally, Chapter 11 considers the case for reform in relation to the ‗unlawful
associations‘ provisions contained in Part IIA of the Crimes Act, which have not been
used for decades and appear to have been superseded by the more recent provisions on
‗terrorist organisations‘ contained in Part 5.3 of the Criminal Code.
32
Review of Sedition Laws
Written submissions
1.86 The ALRC strongly encourages interested persons and organisations to make
written submissions at the earliest opportunity to help advance the reform process.
1.87 With the release of this Discussion Paper, the ALRC invites individuals and
organisations to make submissions in response to the specific proposals, or to any of
the background material and analysis provided. There is no specified format for
submissions. The ALRC will accept gratefully anything from handwritten notes or a
few emailed dot-points, to detailed and comprehensive scholarly analyses. Although
not essential, the ALRC prefers electronic communications.
1.88 If there are passages in this Discussion Paper that seem to imply that
conclusions already have been drawn about the ultimate findings and
recommendations, then this is unintended and is not meant to inhibit the full and open
discussion of policy choices before the ALRC‘s program of research and consultation
is completed.
1.89 Upon completion, the ALRC‘s final report and recommendations will be
presented to the Attorney-General for tabling in the Australian Parliament, at which
point the report becomes a public document.42
1.90 ALRC reports are not self-executing documents. The ALRC is an advisory body
and provides recommendations about the best way to proceed—but implementation is
always a matter for others.43
1.91 In recent times, the ALRC‘s approach to law reform has involved a mix of
strategies including: legislation and subordinate regulations, official standards and
codes of practice, industry and professional guidelines, education and training
programs, and so on. Although the final report is presented to the Attorney-General, it
may be that some of recommendations will be directed to other government and nongovernment agencies, associations and institutions for action or consideration.
In order to ensure consideration in the forthcoming final report, submissions
addressing the proposals in this Discussion Paper must reach the ALRC no
later than Monday, 3 July 2006. Details about how to make a submission are
set out at the front of this publication.
42
43
The Attorney-General must table the Report within 15 sitting days of receiving it: Australian Law Reform
Commission Act 1996 (Cth) s 23.
The ALRC has a strong record of having its advice followed. About 59 per cent of the ALRC‘s previous
reports have been substantially implemented; 27 per cent have been partially implemented; three per cent
are currently under consideration; and 11 per cent have not been implemented: Australian Law Reform
Commission, Annual Report 2004–05, ALRC 101 (2005), 24.
2. Overview of Proposed Reforms
Contents
Introduction
Background
Do we need the concept of ‗sedition‘?
‗Glorification‘ of terrorism
Offences against political liberty and public order
Urging force or violence
Assisting the enemy and treason
Unlawful associations
Review of old Crimes Act provisions
Ancillary matters
Extraterritorial application
Requirement of Attorney-General‘s consent
Net effect of the proposed changes
33
33
35
39
40
40
41
43
45
45
45
46
47
Introduction
2.1 This Discussion Paper details the changes that the ALRC proposes to the
existing sedition offences (which are described and analysed in Chapter 4, and set out
in full in Appendix 1) and related matters. The purpose of this chapter is to explain the
principles and assumptions that underlie the pattern of law reform proposals. In effect,
this chapter serves as an executive summary, but it also contains a number of proposals
that set the scene for the rest of the Discussion Paper.
Background
2.2 As discussed in detail in the following chapter, sedition law has its roots in the
suppression of political dissent, prohibiting criticism that would ‗bring into hatred or
contempt, or to excite disaffection against the person of His Majesty, his heirs or
successors, or the government or constitution … or the administration of justice‘, or ‗to
raise discontent or disaffection among His Majesty‘s subjects, or to promote feelings of
ill-will and hostility between different classes‘. In some common law jurisdictions—
including New South Wales—the related offence of treason still applies (in law, if not
in policy or prosecutorial practice) to those who would even ‗compass or imagine‘ the
34
Review of Sedition Laws
death of the King, Queen or eldest son and heir; or ‗violate the King‘s companion, or
eldest unmarried daughter, or the wife of the eldest son and heir‘.1
2.3 Australian states and territories ‗inherited‘ their sedition laws from the United
Kingdom, whether through the common law or by enactment of parallel statutory
provisions, but the precise formulations vary somewhat (see Chapter 4). South
Australia and the ACT have no legislation prohibiting sedition, and both abolished the
common law offence (in 1992 and 1996, respectively) in an effort to remove ‗outdated
common law rules‘.
2.4 Sedition was a relatively late entrant to federal law, with s 24A of the Crimes
Act (Cth) added in 1920, replacing transitional provisions introduced by the War
Precautions Act 1914 (Cth), which were aimed at suppressing criticism of the aims and
alliances, and conscription policy and practice, of the First World War.2
2.5 Perhaps to a greater extent than any other offence except treason, sedition is a
quintessentially ‗political‘ crime, punishing speech that is critical of the established
order.
2.6 The legislation passed in the Australian Parliament in late 2005 repealed the old
sedition offence in s 24A of the Crimes Act and replaced it with five new offences,
now found in s 80.2 of the Criminal Code (Cth). As detailed in Chapter 4, the new
offences attempt to shift the focus away from ‗mere speech‘ towards ‗urging‘ other
persons to use ‗force or violence‘ in a number of specified contexts—which arguably is
closer conceptually to the criminal laws of incitement and riot than it is to common law
sedition.
2.7 Nevertheless, given the history and the factual circumstances in which the new
offences are likely to be applied and prosecuted, there are concerns held by members
of the community, and politicians across party lines, that there is potential for the law
to over-reach, and to inhibit free speech and free association.
2.8 Australians place a very high premium on free speech and on the importance of
robust political debate and commentary. The free exchange of ideas—however
unpopular or radical—is generally healthier for a society than the suppression and
festering of such ideas.
2.9 At the same time, all liberal democratic societies place some limits on the
exercise of free speech—as authorised under all international human rights conventions
(see Chapter 5)—for example, through civil defamation laws and prohibitions on
1
2
Crimes Act 1900 (NSW) s 16—which expressly continues the operation of the Treason Act of 1351 (Imp)
25 Edw III c 2.
The section was amended in 1986, following recommendations from the Hope Royal Commission, to
remove references to exciting disaffection against the United Kingdom Parliament, government or
constitution, or the government or constitution of ‗any of the King‘s Dominions‘.
2. Overview of Proposed Reforms
35
obscenity, serious racial vilification or incitement to commit a crime. In the famous
dictum of United States Supreme Court Justice Oliver Wendell Holmes Jr, ‗the most
stringent protection of free speech would not protect a man in falsely shouting ―fire‖ in
a theatre and causing a panic‘.3
2.10 Under the Terms of Reference, the central questions for this Inquiry are whether
the new regime (taking together the new offences in s 80.2 and the ‗good faith‘ defence
provided in s 80.3): (a) is well-articulated, as a matter of criminal law; and (b) strikes
an acceptable balance in a tolerant society (or is ‗reasonably justifiable in a democratic
society‘, to use the term of art employed in international human rights law).
Do we need the concept of ‘sedition’?
2.11 Although the contributions made to the debate and analysis through the
consultation process are considered at length in the remainder of this Discussion Paper,
two general points about the tenor of the public feedback are worth making. First, there
is little doubt that, on any dispassionate analysis, the new sedition laws introduced in
2005 are ‗better‘ than the old laws they replaced—whether from a technical or a human
rights and civil liberties perspective.
2.12 The new offences contained in s 80.2 of the Criminal Code shift the emphasis
from speech that is critical of the established order to exhortations to use force or
violence against the established authority, voters or particular groups within the
community. It is very difficult to understand why exhortations to use force or violence
should not be prohibited by federal law—so long as the offences are properly framed.
Further, the defence contained in s 80.3, which was modified after the Bill stage as a
consequence of feedback and recommendations from the Senate Committee, represents
an advance on earlier law in expressly recognising the social interest in permitting
media reports and commentary on matters of public interest.
2.13 Nevertheless, it is clear from the ALRC‘s community consultation process—as
it was during the Senate Committee‘s process—that there is palpable public concern
about the effects of the new laws on freedom of speech and freedom of association,
both directly (that is, fear of conviction and punishment) and even more so through the
so-called ‗chilling effect‘—that is, self-censorship to avoid being charged in the first
place. A significant proportion of the requested consultation meetings and the written
submissions have come from individuals or organisations in Australia associated with
the print and broadcast media, writers, visual artists, theatre groups and filmmakers.
2.14 It is an interesting phenomenon observed in law reform from time to time that
the codification or ‗modernisation‘ of old laws creates new and greater concerns, even
where these efforts bring some objective improvement and increased certainty to the
law. The chilling effect of laws that are outdated and unlikely to be used seems to be
3
Schenck v United States 249 US 47 (1919).
36
Review of Sedition Laws
greatly outweighed by the chilling effect of modernised laws upon which public
attention has been focused—and which may be more likely to be enforced. Thus, the
far more draconian state and territory laws on sedition and treason apparently have not
occasioned a similar chill—because no one knows about them.
2.15 Where such concerns are simply misconceived, as a matter of law and practice,
the best remedy is education rather than legislative change. Where such concerns are
justifiable—in a liberal democratic society that places a very high premium on freedom
of speech and freedom of association—then proper law reform will require both
education and legislative change.
2.16 Some of the concern expressed by stakeholders and commentators clearly stems
from the context in which the new laws emerged. Although the changes made in 2005
largely track the 1991 recommendations of the Gibbs Committee, sedition laws were
not modernised as part of a general ‗tidy up‘ of federal criminal law. Rather, the new
sedition offences were contained in the Anti-Terrorism Act 2005 (Cth), which also
introduced into the Criminal Code a range of extraordinary new powers, mechanisms
and offences—such as control orders (Div 104) and preventative detention orders
(Div 105)—that required a constitutional referral of powers from the states.
2.17 Thus the view—of opponents of the legislation as well as proponents—was that
while sedition offences may have been regarded as a ‗dead letter‘ in western countries
in recent decades, they were being modernised in November 2005 in order to be used.
2.18 As indicated above, the sedition offences were revised at that time to place the
focus squarely on urging the use of force or violence, rather than on expressions of
dissent. Nevertheless, a great deal of the debate and media coverage continued to
argue—incorrectly—that a person could fall foul of the new laws by saying that ‗the
Government was wrong to send troops to Iraq‘, or ‗Australia needs to cut its ties with
the British Crown‘, or that a university lecturer would be in trouble for asking students
of politics or rhetoric to ‗study the speeches of Hitler‘.4
2.19 The ALRC considers that governments have a perfect right, and in many cases a
duty, to legislate to protect the institutions of democracy (responsible government,
independent courts, free elections) from attack by force or violence; and similarly to
protect the personal integrity of citizens (especially vulnerable or unpopular groups)
from attack by force or violence.
2.20 This remains the case even though there may be other federal, state and territory
laws that might be transgressed along the way to committing one of these new
‗sedition‘ offences; for example, riot, affray, assault, malicious damage to property or
hindering public officials. It would be a curious result, indeed, if the Australian
Government could not legislate to protect itself and the fundamental institutions of
4
See, eg, B O‘Keefe, ‗Sedition threatens uni debate‘, The Australian, 3 May 2006, 23.
2. Overview of Proposed Reforms
37
democracy from violent attack, but had to rely on the legislatures of the states and
territories to do this for it.
2.21 Much of the concern about the new offences in s 80.2 of the Criminal Code is
triggered by the fact that they are still referred to as ‗sedition‘ offences. It is not clear
why, after modifying the offences substantially, the Australian Government chose to
retain the term ‗sedition‘ to describe the new offences—especially since one of the new
offences deals with urging inter-group violence rather than with the security of the
Commonwealth. The Gibbs Committee criticised the old Crimes Act definition of
‗seditious intention‘ for being ‗expressed in archaic terms and … misleadingly wide‘,5
and while the new offences in s 80.2 are modelled on those recommended by the Gibbs
Committee, the Committee was silent on the matter of a heading.6
2.22 Nevertheless, Part 5.1 and Division 80 of the Criminal Code are now headed
‗Treason and sedition‘, and s 80.2 is headed ‗Sedition‘. No reference is made to
‗sedition‘ within any of the offences; in the ‗defence‘ contained in s 80.3; in any of the
related evidentiary or procedural provisions; or anywhere else in the Criminal Code.7
2.23 There are two consequences to the retention of the term ‗sedition‘ in the
Criminal Code. First, under s 13 of the Acts Interpretation Act 1901 (Cth):
(1) The headings of the Parts Divisions and Subdivisions into which any Act is
divided shall be deemed to be part of the Act. …
(3) No marginal note, footnote or endnote to an Act, and no heading to a section of an
Act, shall be taken to be part of the Act.
2.24 As a technical matter, the reference to sedition in the headings of Part 5.1 and
Division 80 has consequences for the interpretation of the provisions in that Part;
however, the heading of s 80.2 does not form part of the Act.
2.25 As a practical matter, this may not make a great deal of difference. A court faced
with interpreting the provisions in Part 5.1 will focus primarily on the plain meaning of
the words. The court will have regard to the purpose of the legislation8 and may utilise
relevant extrinsic material—such as Second Reading Speeches, Explanatory
Memoranda and the reports of parliamentary committee and law reform
commissions—if this aids interpretation.9 Further, federal statutes must be construed
subject to the Australian Constitution—which, as interpreted, contains an implied
5
6
7
8
9
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991), [32.13].
Ibid, [32.18].
Part IIA of the Crimes Act 1914 (Cth) on unlawful associations relies on the concept of a ‗seditious
intention‘, which is defined in s 30A. However, in Proposal 11–1 the ALRC calls for repeal of these
provisions.
Acts Interpretation Act 1901 (Cth) s 15AA.
Ibid s 15AB.
38
Review of Sedition Laws
freedom of political speech10—and there is a strong tradition in the common law that
provisions imposing criminal liability must be narrowly construed by the courts.
2.26 The second consequence goes more to the broad social understanding of the law
than to its technical construction. As discussed above, the sedition provisions were
subject to intense criticism in the media and in most of the roughly 300 submissions to
the 2005 Senate Committee inquiry into the Anti-Terrorism Bill (No 2) 2005. In the
face of this high emotion, the Senate Committee recommended, with bipartisan
support, that Schedule 7 (containing the sedition provisions) ‗be removed from the Bill
in its entirety‘ and referred to the ALRC for public inquiry.11 The Government
accepted some of the Senate Committee‘s suggested amendments in this area,12 but
chose to pass the legislation and then to refer it to the ALRC for review.
2.27 In this Discussion Paper (and summarised below), the ALRC makes a range of
proposals to improve the existing law. Some of these represent technical refinements to
the drafting. Mainly, however, the proposals are aimed at ensuring there is a bright line
between freedom of expression—even when exercised in a challenging or unpopular
manner—and the reach of the criminal law, which should focus on exhortations to the
unlawful use of force or violence.
2.28 The ALRC is confident that, following further community feedback on these
proposals, the final report and recommendations will achieve the desired aim in terms
of technical improvements to the law. It would be unfortunate, however, if continued
use of the term ‗sedition‘ were to cast a shadow over the new pattern of offences. The
term ‗sedition‘ is much too closely associated in the public mind with its origins and
history as a crime rooted in criticising—or ‗exciting disaffection‘ against—the
established authority.
2.29 Chapters 5 and 7 consider in some detail the extent to which freedom of
expression is guaranteed by international law and by domestic law (respectively). As
noted above, Australians place a high premium on free speech and robust debate. We
demand that our public institutions be open, transparent and accountable, and we
reserve the right to criticise the most senior officials when we believe they have erred.
The cultural preference is for challenging unpopular or radical views in the
marketplace of ideas, rather than in the criminal courts.
2.30 Consequently, the ALRC proposes that the term ‗sedition‘ no longer be used in
federal criminal law. To this end, Part 5.1 and Division 80 of the Criminal Code should
be renamed ‗Treason and offences against political liberty‘, and the heading of s 80.2
should be changed to ‗Offences against political liberty and public order‘.
10
11
12
See Ch 7.
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [5.173-5.174], rec 27–28.
Ibid, [5.176], rec 29.
2. Overview of Proposed Reforms
39
(Proposal 11–1 calls for the repeal of s 30A of the Crimes Act, which contains the
definition of ‗seditious intention‘ for the purposes of unlawful associations.)
Proposal 2–1
The Australian Government should remove the term
‗sedition‘ from federal criminal law. To this end, the headings of Part 5.1 and
Division 80 of the Criminal Code (Cth) should be changed to ‗Treason and
offences against political liberty‘, and the heading of s 80.2 should be changed
to ‗Offences against political liberty and public order‘.
2.31 As discussed above, most states and territories still have sedition laws in the old
and more objectionable form. In the interests of improving and harmonising the laws in
this area across Australia, the ALRC also proposes that the Australian Government
should initiate a process through the Standing Committee of Attorneys-General to
remove the term ‗sedition‘ from state and territory laws.
Proposal 2–2
The Australian Government should initiate a process
through the Standing Committee of Attorneys-General to remove the term
‗sedition‘ from state and territory laws and to modernise and harmonise the
relevant laws in keeping with the proposed changes to federal law.
‘Glorification’ of terrorism
2.32 Chapter 6 describes the nature and use of sedition laws (or the equivalent) in a
range of other countries. Among other things, the chapter considers s 1 of the
Terrorism Act 2006 (UK), which makes it a criminal offence in the United Kingdom to
engage in the encouragement or ‗glorification‘ of terrorism. Glorification is defined to
include ‗any form of praise or celebration, and cognate expressions are to be construed
accordingly‘.13 This law has been very controversial in the UK—including in the
House of Lords and the UK Parliament‘s Joint Committee on Human Rights—drawing
criticism that: the terminology used is too vague and too broad; there is no requirement
that the person intends to incite terrorism; and the prohibition improperly intrudes into
protected free speech (under art 10 of the European Convention on Human Rights).
2.33 The submission to this Inquiry of the Australian Government AttorneyGeneral‘s Department (AGD) notes that the use of terms like ‗praise‘ and ‗glorify‘
were considered during the development of the Anti-Terrorism Act (No 2) 2005
(Cth)—but rejected as too imprecise and capable of generating difficulties of proof.14
The AGD submission concludes that the existing Australian law already ‗appropriately
13
14
Terrorism Act 2006 (UK) s 20(2).
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
40
Review of Sedition Laws
encapsulates incitement and glorification of [terrorist] acts‘ and thus there ‗appears to
be no need for a separate offence‘.15 The ALRC agrees, and Proposal 6–1 states that
there is no present need to introduce into federal law an offence of encouragement or
glorification of terrorism along the lines of the recent law in the UK.
Offences against political liberty and public order
2.34 While freedom of expression must be given a high premium, it is also well
understood that every liberal democratic society must place some limits on the exercise
of free speech; for example, through civil defamation laws and criminal prohibitions on
obscenity or incitement to commit a crime. The test at international law is whether any
such limits are necessary and reasonably justifiable in a democratic society.
Urging force or violence
2.35 In Chapters 8 and 9, the ALRC proposes ways of reframing or otherwise dealing
with the five offences in s 80.2 of the Criminal Code to place a greater emphasis on the
‗force or violence‘ aspect—continuing in the direction that the Government established
in the 2005 amendments—and to draw the bright line between permitted speech and
criminal conduct.
2.36 The ALRC proposes the retention of the basic offences contained in s 80.2(1)
(urging the overthrow by force or violence of the Constitution or Government);
s 80.2(3) (urging interference in parliamentary elections by force or violence); and
s 80.2(5) (urging inter-group force or violence). However, two changes are suggested
to the scope of the offences:
•
section 80.2(3) should be extended to cover urging another to use force or
violence to interfere with a constitutional referendum;16 and
•
section 80.2(5) should include ‗national origin‘ among the distinguishing
features of a group for the purpose of that offence.17
2.37 More fundamental changes to the manner in which these offences should
operate are also proposed, including that:
•
Each of the three provisions should be amended to make clear that the person
must intentionally urge the use of force or violence.18
15
16
17
18
Ibid.
Proposals 8–6, 8–7.
Proposal 9–2.
Proposals 8–3, 8–6, 9–2.
2. Overview of Proposed Reforms
41
•
An additional provision should be inserted into s 80.2 to make clear that for a
person to be guilty of any of the three offences, the person must intend that the
urged force or violence will occur.19
•
In considering whether the person intended the urged force or violence to occur,
context is critical. The ALRC proposes that the court must take into account
whether the conduct was done: (i) in the performance, exhibition or distribution
of any artistic work; or (ii) in the course of any statement, publication,
discussion or debate made or held for any genuine academic, artistic or scientific
purpose, or any other genuine purpose in the public interest; or (iii) in
connection with an industrial dispute or an industrial matter; or (iv) in
publishing a report or commentary about a matter of public interest.20
•
Given the effect of those proposed changes, the ‗good faith‘ defence in s 80.3 is
inappropriate and should be repealed.21 Most submissions and consultations
raise serious questions about the nature and application of the existing
provisions in s 80.3. There is a strong view the such a defence is inherently
illogical: a person would need to point to evidence (which the prosecution
would have to negative beyond reasonable doubt) showing that, while he or she
intentionally urged another person to use force or violence to overthrow the
Constitution (for example), this was done ‗in good faith‘. Proposal 10–2 meets
these concerns by building the contextual issues into the required elements of
the offences, rather than relying on an affirmative defence.
Assisting the enemy and treason
2.38 The ALRC has significantly more concern about the offences currently
contained in s 80.2(7)–(8), which are not built around the concept of ‗urging force or
violence‘, but rather with urging another to ‗assist‘ an enemy at war with Australia or
an entity that is engaged in armed hostilities against the Australian Defence Force
(ADF), respectively. Unlike the three offences considered above, the ‗assisting‘
offences were not recommended by the Gibbs Committee.
2.39 The ALRC agrees with the run of submissions and commentary that point to the
undesirable breadth of the term ‗assist‘, which is not defined in the Criminal Code.
There is an express exemption in s 80.2(9) for providing ‗aid of a humanitarian nature‘.
However, significant problems remain with the offences as drafted—and these
provisions mirror almost exactly the terms of s 80.1(1)(e) and (f) on treason, which
carries a maximum penalty of life imprisonment.
2.40 The ALRC cannot suggest reform of the ‗assisting‘ offences in s 80.2, while
leaving intact the parallel provisions dealing with treason. For that reason, the ALRC
19
20
21
Proposal 8–1.
Proposal 10–2.
Proposal 10–1.
42
Review of Sedition Laws
proposes the repeal of s 80.2(7)–(9),22 and proposes a number of key changes to the
equivalent provisions governing the treason offences in s 80.1.
2.41 First, there is significant concern that such a blanket prohibition on conduct that
‗assists‘ the enemy unduly impinges on freedom of expression, to the extent that it
captures merely dissenting opinions about government policy. For example, it may be
said colloquially that strong criticism of Australia‘s recent military interventions in
Afghanistan or Iraq ‗gives aid and comfort‘ to—or ‗assists‘—the enemy.
2.42 Secondly, there is no requirement to show that the defendant‘s conduct assisted
the enemy to wage war against Australia or engage in armed hostilities against the
ADF; it would be sufficient to prove that the person urged another to assist an enemy
that happened to be at war with Australia or an entity happened to engage in armed
hostilities against the ADF.
2.43 To remedy these concerns, the ALRC proposes that s 80.1(1)(e)–(f) should be
reframed to make clear that the offences consist of intentionally and materially
assisting an enemy to wage war on Australia or to engage in armed hostilities against
the ADF.23 The addition of the term ‗materially‘ is meant to indicate that mere rhetoric
or expressions of dissent do not amount to ‗assistance‘ for these purposes; rather, the
assistance must enable the enemy or entity to wage war or engage in armed hostilities,
such as through the provision of funds, troops, armaments or strategic advice or
information.
2.44 The ALRC also proposes that s 80.1 be amended to require that the person must
be an Australian citizen or resident at the time of the alleged conduct.24 Such a
qualification is common in other countries, and consistent with the nature and
historical origins of the concept of treason, which has at its centre the violation of a
duty of allegiance to one‘s country.25 Apart from the value of this change as a matter of
principle, it also will help avoid the potential for anomalous cases in practice, given
that the offence has extraterritorial application (see below). For example, virtually all
enemy combatants who are foreign nationals could be swept up by the existing treason
offence, even if they arrived in Australia many years after hostilities have ceased.26
2.45 There are a number of other aspects of the treason offences that, while not
related directly to this Inquiry, appear to warrant further attention. For example, some
of the language in s 80.1 is rather archaic, and does not mesh with the modern
22
23
24
25
26
Proposal 8–8.
Proposal 8–9.
Proposal 8–11.
There was no citizenship qualification in the old Crimes Act provision either. However, the Gibbs
Committee observed that the treason offences ‗must obviously be construed so as not to apply to an
enemy alien in time of war outside Australia‘: see H Gibbs, R Watson and A Menzies, Review of
Commonwealth Criminal Law: Fifth Interim Report (1991).
See the discussion in Ch 8.
2. Overview of Proposed Reforms
43
terminology or concepts used in the Criminal Code. There are also questions about the
appropriateness of the penalty of life imprisonment for accessories after the fact or
those guilty of ‗misprision of treason‘—failure to report the matter to a police officer
as soon as possible. Consequently, the ALRC proposes that the Australian Government
conduct a further review of s 80.1.27
Unlawful associations
2.46 Part IIA of the Crimes Act on unlawful associations was introduced in 1926 to
deal with the perceived threat of the Community Party of Australia and radical trade
union activity,28 but rarely has been used. Canadian provisions that served as a model
for Part IIA were repealed in 1936.29
2.47 The Terms of Reference for the current Inquiry ask the ALRC to consider
Part IIA because the declaration of an ‗unlawful association‘ may proceed from a
finding that the group shares a ‗seditious intention‘, as defined by s 30A of the Crimes
Act. (This area is discussed in further detail in Chapter 11.)
2.48 Once a body is a declared to be an unlawful association, a number of criminal
offences come into play, including: failure to provide information relating to an
unlawful association upon the request of the Attorney-General;30 being an officer,
member or representative of an unlawful association;31 giving contributions of money
or goods to, or soliciting donations for, an unlawful association;32 printing, publishing
or selling material issued by an unlawful association;33 and allowing meetings of an
unlawful association to be held on property owned or controlled by a person.34
2.49 In 1991, the Gibbs Committee considered the ‗little used‘ unlawful associations
provisions, commenting in a discussion paper that it was ‗disposed to think that the
activities at which these provisions are aimed can best be dealt with by existing laws
… and that there is no need for these provisions‘.35 In its final report, the Gibbs
Committee noted that all the submissions received in response to the proposal to repeal
Part IIA endorsed that view, and the Committee so recommended.36
27
28
29
30
31
32
33
34
35
36
Proposal 8–10.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
R Douglas, ‗Keeping the Revolution at Bay: The Unlawful Associations Provisions of the
Commonwealth Crimes Act‘ (2001) 22 Adelaide Law Review 259, 260.
Crimes Act 1914 (Cth) s 30AB, with a maximum penalty of imprisonment for six months.
Ibid s 30B, imprisonment for up to one year; and see s 30H regarding proof of membership.
Ibid s 30D, imprisonment for up to six months.
Ibid ss 30E, 30F and 30FA.
Ibid s 30FC, imprisonment for up to six months.
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991), [38.2]–[38.9].
Ibid, [38.8].
44
Review of Sedition Laws
2.50 In 2002, a comprehensive set of provisions dealing with ‗terrorist organisations‘
was introduced into the Criminal Code (Division 102). No attempt was made to adapt
the unlawful associations provisions for this purpose, but neither were they repealed.
The criteria for declaring that a group is a ‗terrorist organisation‘ do not rely on the
concept of sedition or seditious intention; rather, the group must be directly or
indirectly engaged in planning, fostering or advocating ‗terrorist acts‘ (as defined in
s 100.1).
2.51 A group may be ‗listed‘ as a terrorist organisation in Australia following
proceedings in the Federal Court, or pursuant to a regulation (disallowable in
Parliament) where the Attorney-General is satisfied that the criteria are met
(s 102.1(2)). Prior listing by the United Nations Security Council is no longer required.
2.52 Consultations and submissions strongly favoured the repeal of the unlawful
associations provisions in Part IIA of the Crimes Act. Only the submission of the AGD
did not agree with this proposition, but agreed that Part IIA was ‗developed in the
context of concern about communism in Australia‘, while ‗circumstances have
changed dramatically since‘ and the new terrorism provisions are better crafted to
‗address contemporary threats to the Australian community‘.37
2.53 The ALRC agrees with the Gibbs Committee and the predominant view
expressed in consultations and submissions that the unlawful associations provisions
are anachronistic and unnecessary. There is little point in seeking to modernise these
provisions since that work already has been done in developing the terrorist
organisations provisions in the Criminal Code, which are better suited to contemporary
circumstances. Consequently, the ALRC proposes that the unlawful associations
provisions of Part IIA of the Crimes Act be repealed.38
2.54 There are three ‗stand alone‘ sections in Part IIA that do not rely on the concept
of ‗seditious intent‘ or the declaration of an ‗unlawful association‘: s 30C (advocating
the overthrow of the Government), s 30J (illegal lockouts and strikes) and s 30K
(hindering services by threats or violence). In Proposal 8–5, the ALRC suggests that
s 30C is made redundant by the proposed new offences against political liberty, and
should be repealed. There are no existing or proposed counterparts for ss 30J–K, and
further consideration of these offences would be outside the Inquiry‘s Terms of
Reference. Proposal 11–2 adds these provisions to a suggested list of those that the
Australian Government should cause to be reviewed (see below).
37
38
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
See Ch 11, Proposal 11–1, which specifies repeal of ss 30A, 30AA, 30AB, 30B, 30D, 30E, 30F, 30FA,
30FC, 30FD, 30G and 30H.
2. Overview of Proposed Reforms
45
Review of old Crimes Act provisions
2.55 In the course of this Inquiry, the ALRC has come across a large number of old
provisions in Part II of the Crimes Act that are related to the existing sedition and
treason laws. These include the offences of ‗treachery‘ (s 24AA), sabotage (s 24AB),
assisting prisoners of war (s 26), unlawful military drills (s 27), interfering with
political liberty (s 28), and damaging Commonwealth property (s 29).
2.56 All of these provisions are couched in archaic language, and many of them may
have been superseded by new and better laws. It is beyond the Inquiry‘s Terms of
Reference and timeframe to conduct a systematic review of these provisions, but the
ALRC proposes that the Australian Government initiate a review to determine which
offences merit retention, modernisation and relocation to the Criminal Code, and
which should be abolished because they are redundant or otherwise inappropriate.39
Ancillary matters
Extraterritorial application
2.57 Common law countries traditionally have based criminal jurisdiction on
considerations of territorial sovereignty, and have been suspicious of jurisdictional
claims that smack of ‗universality‘. However, there has been a pronounced recent trend
towards the extraterritorial application of criminal laws, generated by both: (a) rapid
developments in transport and communications technology; and (b) increased concerns
over serious crimes that may be perpetrated across borders, such as genocide, people
smuggling, child sex tourism, sex slavery, hostage taking and terrorism.
2.58 Under s 80.4 of the Criminal Code, treason and sedition offences are subject to
‗extended geographical jurisdiction—category D‘, which is defined in s 15.4 to mean
that the law applies: (a) whether or not the conduct constituting the alleged offence
occurs in Australia; and (b) whether or not a result of the conduct constituting the
alleged offence occurs in Australia.
2.59 Government policy is that sedition should be a category D offence because
offences may be committed from an external location via the internet or telephone.40
For example, someone overseas could establish a website that urges others to use force
or violence to interfere in Australian parliamentary elections, or could send SMS text
messages to associates in Australia, urging them to use force or violence against a
particular racial or ethnic group. As a practical matter, of course, enforcement will be
difficult unless the alleged offender is physically within the jurisdiction to face the
Australian courts, which may require instituting extradition proceedings pursuant to a
treaty.
39
40
See Ch 4, Proposal 4–1.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
46
Review of Sedition Laws
2.60 The ALRC has no problem in principle with this policy choice in relation to
sedition. As noted above, the ALRC can see some anomalies potentially arising in the
prosecution of treason offences under s 80.1 of the Criminal Code if the provisions are
given extraterritorial effect. However, the ALRC proposes to address this issue in
another way, by adding a requirement to s 80.1 that the treason offences only apply to a
person who is an Australian citizen or resident at the time of the conduct in question.41
Requirement of Attorney-General’s consent
2.61 Under s 80.5, an offence under Division 80 of the Criminal Code may not be
prosecuted without the written consent of the Attorney-General. In practice, this
provision would be used only in very rare circumstances, where the Director of Public
Prosections has made a decision that the evidence available and the public interest
warrant criminal proceedings, but the Attorney-General believes otherwise. According
to the Explanatory Memorandum to the Anti-Terrorism Bill (No 2) 2005, this provision
is designed to provide an additional safeguard for a person charged with a sedition
offence.42
2.62 The requirement for the Attorney-General‘s consent to a prosecution is found
throughout the federal criminal law. In some cases, this is because the legislation predates the establishment of the independent office of the DPP in 1983.43 However, a
number of modern provisions also impose the requirement—for example, offences in
relation to people smuggling offences;44 espionage;45 and genocide, crimes against
humanity, and war crimes.46
2.63 Section 16.1 of the Criminal Code also provides a general rule that the
Attorney-General‘s consent is required to prosecute any offence where: (a) the alleged
conduct occurs wholly in a foreign country; and (b) the person is not an Australian
citizen, resident or body corporate incorporated in Australia.47 In such cases, the
purpose of the consent requirement is said to give regard to considerations of
international law, practice and comity, international relations, and other public interest
considerations.48
2.64 The ALRC accepts that the intention behind s 80.5 is to provide an additional
safeguard for defendants, rather than an attempt to ‗politicise‘ this area. As the AGD
argued before the 2005 Senate Committee inquiry, ‗the Attorney is a political
41
42
43
44
45
46
47
48
See Ch 8, Proposal 8–11.
Explanatory Memorandum, Anti-Terrorism Bill (No 2) 2005 (Cth), 93.
Director of Public Prosecutions Act 1983 (Cth).
Criminal Code (Cth) Division 73, Subdivision A. See s 73.5.
Ibid Part 5.2. See s 93.1.
Ibid Division 268. See s 268.121.
Ibid s 16.1.
I Leader-Elliot, The Commonwealth Criminal Code: A Guide for Practitioners, Attorney-General‘s
Department and Australian Institute of Judicial Administration, 1 March 2002, 365.
2. Overview of Proposed Reforms
47
safeguard on the DPP and the DPP is a safeguard on the Attorney‘.49 The AGD
reiterated this view in a submission to this Inquiry, stating that the consent requirement
‗addresses any concerns about officials misusing the offence‘.50
2.65 However, as discussed above, sedition (especially in its earlier forms) can be
characterised as an inherently political offence, used against dissidents and opponents
of the established political order. Against this background, it is not surprising that
significant misgivings were expressed in consultations and submissions about any
perceived influence by an Attorney-General—an elected politician—in a prosecution
process that has been reserved for the past twenty years to independent officers
operating under published guidelines and ethical obligations to the court.
2.66 On balance, the ALRC proposes that s 80.5 should be repealed.51 The continued
existence of the general requirement in s 16.1 seems adequate to ensure that the
Attorney-General is given a role where there are significant implications for
international relations. The ALRC is strongly influenced by the fact that the run of new
terrorism offences in Part 5.3 of the Criminal Code do not require the AttorneyGeneral‘s consent to a prosecution (unless s 16.1 applies). Logic suggests that the same
position apply to the Division 80.2 offences against political liberty and public order.
Net effect of the proposed changes
2.67 It is proposed that most of Part IIA of the Crimes Act (on unlawful associations)
be repealed, with two offences (ss 30J and 30K) to be reviewed.
2.68 A number of major and minor changes are proposed for Division 80 of the
Criminal Code, on treason and sedition. Appendix 1 of this Discussion Paper contains
the provisions in Division 80 are they currently exist. Appendix 2 indicates what these
provisions would look like if the ALRC‘s proposals were implemented, with the
changes highlighted.
49
50
51
Senate Legal and Constitutional Committee—Australian Parliament, Anti-Terrorism Bill (No 2) 2005:
Transcript of Public Hearing, 18 November 2005, 19 (G McDonald).
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
See Ch 8, Proposal 8–12.
3. Origins and History of Sedition Law
Contents
Introduction
The origins and evolution of common law sedition
Early origins
Common law development
Sedition in the 20th century
Sedition in Australia
Colonial era inheritance
Crimes Act 1914 (Cth)
Communist Party prosecutions
Recent consideration
Reform trends: modernise or abolish?
Hope Royal Commission
Gibbs Committee
Legislative amendments in 2005
49
51
51
52
54
55
55
55
57
61
61
61
62
62
Introduction
3.1 This chapter provides an overview of the history of the law of sedition. In
particular, it examines the evolution of sedition at common law and outlines its
application in Australia in the 20th century.
3.2 The law of sedition prohibits words or conduct deemed to incite discontent or
rebellion against the authority of the state. Historically, ‗sedition‘ described a number
of common law or statutory offences, namely, uttering seditious words, publishing or
printing seditious words, undertaking a seditious enterprise, or engaging in a seditious
conspiracy.1 Traditionally, for a word or activity to be seditious it must be said, written
or done with a ‗seditious intention‘.2
3.3 The classic definition of seditious intention is found in Stephen‘s Digest of the
Criminal Law published in 1887:
1
2
L Maher, ‗The Use and Abuse of Sedition‘ (1992) 14 Sydney Law Review 287, fn 3.
C Kyer, ‗Sedition Through the Ages: A Note on Legal Terminology‘ (1979) 37 University of Toronto
Faculty of Law Review 266, 267.
50
Review of Sedition Laws
A seditious intention is an intention to bring into hatred or contempt, or to excite
disaffection against the person of, His Majesty, his heirs or successors, or the
government and constitution of the United Kingdom, as by law established, or either
House of Parliament, or the administration of justice, or to excite His Majesty‘s
subjects to attempt otherwise than by lawful means, the alteration of any matter in
Church or State by law established, or to incite any person to commit any crime in
disturbance of the peace, or to raise discontent or disaffection amongst His Majesty‘s
subjects, or to promote feelings of ill-will and hostility between different classes of
such subjects.3
3.4 In this context, seditious intention further defines the physical element of the
offences, rather than referring to the mental or fault element required.4 Thus it can be
seen that the legal elements of sedition offences are ill-defined. The vagueness of the
language used to describe the notion of seditious intention makes it difficult to
demarcate the boundaries of sedition offences with any certainty. In Boucher v The
Queen, Kellock J stated that ‗probably no crime has been left in such vagueness of
definition‘.5
3.5 Historically, the law of sedition has been used to punish a wide range of
behaviour—from satirical comment or mere criticism of authority to the incitement of
violent uprising. The scope and application of the law has fluctuated significantly over
time.6 One commentator has remarked:
What used to be regarded as a clear case of seditious libel in both England and the
United States is now generally considered to be merely the vehement expression of
political opinion, and therefore the classic instance of constitutionally protected
speech.7
3.6 The historical account of the law of sedition set out below reveals that the
development and use of sedition laws has been influenced strongly by the changing
political climate and the degree of public support for existing state institutions; theories
about the relationship between citizen and state; and evolving notions of the
relationship between action, idea, association and responsibility. It also reveals that
there has been a general trend in the common law courts to narrow the scope of
sedition offences in accordance with contemporary emphasis on the importance of free
speech and open political debate. A distinction has thus been drawn between the
expression of political opinion with reformist aims and the advocacy of revolutionary
or violent political action.
3.7 However, an examination of prosecutions in Australia in the 20th century also
reveals cases in which the law of sedition has been used to stifle political dissent in a
manner that many would consider incompatible with modern democratic processes.
3
4
5
6
7
J Stephen, A Digest of the Criminal Law (1887), cited in Law Commission of England and Wales,
Working Paper No 72 Second Programme, Item XVIII Codification of the Criminal Law—Treason,
Sedition and Allied Offences (1977), 42.
R v Chief Metropolitan Stipendiary Magistrate; ex parte Choudhury [1991] 1 QB 429, 433.
Boucher v The King [1951] 2 DLR 369, 382.
See Ibid per Kellock J, 382.
E Barendt, Freedom of Speech (2nd ed, 2005), 163.
3. Origins and History of Sedition Law
51
The origins and evolution of common law sedition
Early origins
3.8 The law of sedition derives from the law of treason, which since feudal times
has punished acts deemed to constitute a violation of a subject‘s allegiance to his or her
lord or monarch.8 Sedition and treason are related conceptually because seditious
words or conduct can stir up opposition to the established authority. For this reason it
has been said that sedition ‗frequently precedes treason by a short interval‘.9
3.9 The prohibition of mere criticism of government that does not incite violence
reflects an antiquated view of the relationship between the state and society. According
to this view, the ruler is the superior of the subject and as such is entitled to be shielded
from criticism or censure likely to diminish his or her status or authority.10 In the 1704
case of R v Tutchin, Holt LCJ explained this view as follows:
If people should not be called to account for possessing the people with an ill opinion
of the government, no government can subsist. For it is very necessary for all
governments that the people should have a good opinion of it. And nothing can be
worse to any government, than to endeavour to procure animosities as to the
management of it; this has been always looked upon as a crime and no government
can be safe without it be punished.11
3.10 Prior to the early 17th century, offences that would now be classified as sedition
offences were prosecuted pursuant to statutes creating treason offences12 and other
felonies,13 scandalum magnatum,14 or martial law.15
8
9
10
11
12
See ‗Historical Concept of Treason: English and American‘ (1960) 35 Indiana Law Journal 70. The word
‗sedition‘ derives from the Latin seditio¸ meaning uprising or insurrection. In classical Rome and in
medieval England, seditio was used to refer to offences that, according to modern understanding, would
be referred to as treason (in other words, overt acts of rebellion or insurrection). The contemporary use of
the word—denoting behaviour that may incite discontent or rebellion against lawfully constituted
authority—did not appear until the 1600s: see C Kyer, ‗Sedition Through the Ages: A Note on Legal
Terminology‘ (1979) 37 University of Toronto Faculty of Law Review 266, 266–267.
R v Sullivan (1868) 11 Cox CC 44, 45 per Fitzgerald J.
E Barendt, Freedom of Speech (2nd ed, 2005), 163.
R v Tutchin (1704) 14 State Trials (OS) 1096, 1128.
The breadth of the law of treason has fluctuated throughout history, at times encompassing the whole of
criminal law: ‗Historical Concept of Treason: English and American‘ (1960) 35 Indiana Law Journal 70,
70; M Black, ‗Five Approaches to Reforming the Law: 650 Years of Treason and Sedition‘ (Paper
presented at Australasian Law Reform Agencies Conference, Sydney, 11 April 2006). The law of treason
was first codified in England by the 1351 Statute of Treasons (25 Edward III, St 5, c 2) during the reign
of Edward III. This Act attempted to narrow the scope of the law to three primary offences: imagining or
compassing the death of the King; levying war against the King; and aiding the King‘s enemies. However
subsequent monarchs broadened its scope by the enactment of additional statutes creating new treason
offences. Commentators have noted that these enactments were more a matter of political expediency
than principled reform of the law: see Law Reform Commission of Canada, Crimes Against the State,
Working Paper 49 (1986), 6. Given the narrow scope of the 1351 statute, the prosecution of words as
treason required a broad judicial interpretation or a statutory extension of the law. For example, in 1534
Henry VIII passed legislation that made it possible to commit treason by words or writing (Act of
Treasons Henry VIII c 13). See P Hamburger, ‗The Development of the Law of Seditious Libel and the
Control of the Press‘ (1985) 37 Stanford Law Review 661; R Manning, ‗The Origins of the Doctrine of
Sedition‘ (1980) 12 Albion 99.
52
Review of Sedition Laws
3.11 Seditious libel emerged as a distinct offence in the early 1600s in the Court of
Star Chamber.16 In De Libellis Famosis the defendant was prosecuted for defaming the
deceased Archbishop of Canterbury.17 The Court held that the basis of criminal libel
was that it risked a breach of the peace—the truth of the statements did not provide a
defence, since the peace was just as likely to be broken whether the statements were
true or false.18 In addition, it held that a libel against a public figure was a greater
offence than one against a private person, since
it concerns not only the breach of the peace, but also the scandal of government; for
what greater scandal of government can there be than to have corrupt or wicked
magistrates to be appointed and constituted by the King to govern his subjects under
him? And greater imputation to the state cannot be, than to suffer such corrupt men to
sit in the sacred seat of justice, or to have any meddling in or concerning the
administration of justice.19
3.12 At the time of this decision, the absolute monarchy was under threat from the
rising parliamentarians. The advent of the printing press had prompted a more
sustained effort to control expression of ideas critical of the church and state20—
foreshadowing, by several centuries, current concerns about the rapid spread of
information through the internet and other forms of modern communications
technology. Existing means of prosecuting seditious words and writings were
inexpedient, and hence seditious libel was developed as a more efficient and effective
means of securing convictions.21
Common law development
3.13 Following the demise of the absolute monarchy and the abolition of the Star
Chamber by the Long Parliament in 1641, the law of sedition was developed in the
common law courts. The substantive law did not change significantly until the late 18th
century, and until this time ‗any criticism of public men, laws or institutions was liable
to be treated as sedition‘.22 During this period, neither the intention of the defendant (or
rather, the absence of intention to incite disaffection or violence) nor the truth of the
13
14
15
16
17
18
19
20
21
22
See P Hamburger, ‗The Development of the Law of Seditious Libel and the Control of the Press‘ (1985)
37 Stanford Law Review 661, 670–671.
Scandalum magnatum, first proscribed in the 1275 Statute of Westminster (3 Edw 1 c 34), stated that
‗from henceforth none be so hardy to tell or publish any false news or Tales, whereby discord, or
accession of discord or slander may grow between the King and his people, or the Great Men of the
Realm‘. See Ibid, 668.
See R Manning, ‗The Origins of the Doctrine of Sedition‘ (1980) 12 Albion 99, 106–110.
M Head, ‗Sedition—Is the Star Chamber Dead?‘ (1979) 3 Criminal Law Journal 89, 94. The Court of
Star Chamber became renowned for abuse and misuse of power: Civil Liberties Australia, Submission
SED 37, 10 April 2006.
The Case De Libellis Famosis, or of Sandalous Libels (1606) 5 Co Rep 125a.
Ibid, 250.
Ibid, 251.
Law Reform Commission (Ireland), Consultation Paper on the Crime of Libel (1991), 7; Law Reform
Commission of Canada, Crimes Against the State, Working Paper 49 (1986), 6.
See P Hamburger, ‗The Development of the Law of Seditious Libel and the Control of the Press‘ (1985)
37 Stanford Law Review 661, 759; R Manning, ‗The Origins of the Doctrine of Sedition‘ (1980) 12
Albion 99, 100.
M Head, ‗Sedition—Is the Star Chamber Dead?‘ (1979) 3 Criminal Law Journal 89, 95.
3. Origins and History of Sedition Law
53
matters communicated affected the finding of guilt.23 The courts emphasised that it was
the mere tendency of criticism to undermine government that rendered the conduct an
offence.24
3.14 The breadth of the law of sedition during this period is partly attributable to the
functions of the judge and jury in seditious libel trials. Juries in seditious libel trials
were entitled to determine only whether a defendant uttered, published or printed the
words in question. They were precluded from considering whether the words were in
fact ‗seditious‘ or whether the defendant intended them to be so.25 It has been noted
that this gave rise to conflicts between judges and juries, particularly when juries were
urged by defence counsel to use their verdicts to protest against unjust prosecutions.26
3.15 A notable change to the law occurred with the passage of Fox’s Libel Act in
1792,27 which gave the jury the legal right to deliver a general verdict on the entire case
and to determine the facts and the application of the law to those facts.28 The practical
effect of this reform was the introduction of an intention requirement into the law of
sedition.29 In addition, by allowing more political considerations to be taken into
account by the jury, it forced the law of sedition to conform to some extent to popular
opinion about the right to free speech and political debate.30
3.16 The 19th century saw a significant shift in the definition and use of the sedition
offences. In response to the permeation of liberal democratic notions of the relationship
between state and society—and, in particular, the notion that individuals should have
freedom of speech in relation to political matters—the law of sedition adapted to allow
more criticism of government.31 However, the legal elements of the offences remained
far from clear, and authorities varied as to the nature of the intention required and
whether such intention was to be determined subjectively or objectively.32 It appears
that the general trend in the case law was to confine the offence to cases in which the
words urged others to commit illegal acts or to create public disturbances.33 In addition,
the focus of sedition prosecutions began to shift to the seditious effect of the words as
opposed to their intrinsically libellous nature.34
23
24
25
26
27
28
29
30
31
32
33
34
B Shientag, Moulders of Legal Thought (1943), 167.
See, eg, R v Tutchin (1704) 14 State Trials (OS) 1096.
For a discussion of the respective functions of the judge and jury during this period, see B Shientag,
Moulders of Legal Thought (1943).
B Wright, Submission SED 58, 19 April 2006.
32 Geo III c 60.
B Shientag, Moulders of Legal Thought (1943), 177–178; B Wright, Submission SED 58, 19 April 2006.
M Head, ‗Sedition—Is the Star Chamber Dead?‘ (1979) 3 Criminal Law Journal 89, 95.
M Lobban, ‗From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political
Crime c1770–1820‘ (1990) 10 Oxford Journal of Legal Studies 307, 308.
See L Maher, ‗The Use and Abuse of Sedition‘ (1992) 14 Sydney Law Review 287, 291. This shift
provided the basis for the good faith defence that was later incorporated into the common law, reflected in
the repealed s 24F of the Crimes Act 1914 (Cth).
Law Reform Commission (Ireland), Consultation Paper on the Crime of Libel (1991), 60–61.
M Head, ‗Sedition—Is the Star Chamber Dead?‘ (1979) 3 Criminal Law Journal 89, 96–97.
M Lobban, ‗From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political
Crime c1770–1820‘ (1990) 10 Oxford Journal of Legal Studies 307, 349.
54
Review of Sedition Laws
3.17 The increasing difficulty in prosecuting seditious libel and the upsurge of radical
activity following the Napoleonic wars led to the development of the offence of
‗seditious conspiracy‘. This included ‗every sort of attempt, by violent language either
spoken or written, or by a show of force calculated to produce fear, to effect any public
object of an evil character‘.35 Seditious conspiracy bore similarities to the law of
unlawful assembly, and was manifested by making speeches, holding meetings or
taking steps in concert with others.36
3.18 Prosecutions for seditious conspiracy were brought sporadically throughout the
19th century, notably following the Peterloo massacre of 1819 and in connection with
the Chartist disturbances in 1839 and the latter half of the century.37 Despite the
breadth of this offence, it appears that it was prosecuted less often than other public
order offences, such as unlawful assembly and riot.38 The changing nature of political
activity in the 19th century meant that ‗seditious‘ speech often occurred in the context
of protest activities, with authorities using the unlawful assembly laws instead of
sedition laws to control protest movements.39
Sedition in the 20th century
3.19 Sedition prosecutions in the United Kingdom tapered off in the first half of the
20th century and fell into disuse in the latter half of the 20th century. The last
prosecution initiated by the British Crown was in 1947.40
3.20 The legal elements of the common law sedition offences remain uncertain—
particularly whether a specific subjective intention is required, or whether a basic
intention objectively discerned will suffice.41 However, in Boucher v The King the
Supreme Court of Canada held that in order to be guilty of a sedition offence a
defendant must intend to incite violence or to create public disturbance or disorder for
the purpose of disturbing constituted authority.42
3.21 Sedition law was most recently considered by the Divisional Court in England in
1991 when a private prosecution was brought against the author and publishers of The
35
36
37
38
39
40
41
42
M Head, ‗Sedition—Is the Star Chamber Dead?‘ (1979) 3 Criminal Law Journal 89, 98.
L Donohue, ‗Terrorist Speech and the Future of Free Expression‘ (2005) 27 Cardozo Law Review 233,
263.
See M Lobban, ‗From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political
Crime c1770–1820‘ (1990) 10 Oxford Journal of Legal Studies 307.
L Donohue, ‗Terrorist Speech and the Future of Free Expression‘ (2005) 27 Cardozo Law Review 233,
263.
See L Maher, ‗The Use and Abuse of Sedition‘ (1992) 14 Sydney Law Review 287, 291–292.
The defendant was acquitted: R v Caunt (Unreported, Birkett J, 1947).
D Feldman, Civil Liberties and Human Rights in England and Wales (2nd ed, 2002), 898. For example, in
R v Burns (1886) 16 Cox CC 355, Cave J instructed the jury that in order to establish the requisite mens
rea there must be a distinct intention, going beyond mere recklessness, to produce disturbances: 364.
However, in R v Aldred (1909) 22 Cox CC 1, the Court applied an objective test, stating that ‗every
person must be deemed to intend the consequences which would naturally flow from his conduct‘: cited
in Law Commission of England and Wales, Working Paper No 72 Second Programme, Item XVIII
Codification of the Criminal Law—Treason, Sedition and Allied Offences (1977), 45.
Boucher v The King [1951] 2 DLR 369.
3. Origins and History of Sedition Law
55
Satanic Verses.43 The Court approved the statement in Boucher that incitement to
violence or public disorder for the purpose of disturbing constituted authority is a
necessary ingredient of the common law offences of sedition.44
Sedition in Australia
Colonial era inheritance
3.22 The Australian states inherited the British common law of sedition.45 State
prosecutions for sedition were brought at various periods throughout the 19th and early
20th centuries. Notably, sedition laws were used to prosecute:
•
John Macarthur, founder of the Australian merino wool industry, for seditious
behaviour against Governor Bligh in 1807–08;46
•
Governor Darling‘s political opponents, including critics in the press, in the
early 1800s;47
•
Henry Seekamp, the editor and owner of the Ballarat Times at the time of the
Eureka Stockade in 1854;48
•
anti-conscriptionists who opposed Australia‘s involvement in the First World
War;49 and
•
F W Paterson, the Member for Bowen from 1944–50, for expressing support for
the workers‘ struggle against capitalism at a public meeting in 1930.50
Crimes Act 1914 (Cth)
3.23 Until 1914, criminal law in Australia was almost entirely the province of the
states and territories.51 Following the commencement of the First World War, judicial
43
44
45
46
47
48
49
50
51
R v Chief Metropolitan Stipendiary Magistrate; ex parte Choudhury [1991] 1 QB 429, 453.
Ibid, 453.
Sedition offences were subsequently codified in the code states: Criminal Code 1924 (Tas) ss 66, 67;
Criminal Code 1913 (WA) ss 44–46; Criminal Code 1899 (Qld) ss 44–46. The common law continued to
operate in the other states: see M Head, ‗Sedition—Is the Star Chamber Dead?‘ (1979) 3 Criminal Law
Journal 89, 91.
R Jordan, In Good Faith: Sedition Law in Australia (2006) E-Brief: Parliamentary Library—Parliament
of Australia <www.aph.gov.au/library/INTGUIDE/LAW/sedition.htm> at 16 May 2006.
D Ash, ‗Sedition‘ (2005) (Summer 2005–2006) Forbes Flyer 2, 1; New South Wales Bar Association,
Submission SED 20, 7 April 2006.
M Black, ‗Five Approaches to Reforming the Law: 650 Years of Treason and Sedition‘ (Paper presented
at Australasian Law Reform Agencies Conference, Sydney, 11 April 2006); New South Wales Bar
Association, Submission SED 20, 7 April 2006.
S Macintyre, The Reds (1998), 17.
New South Wales Bar Association, Submission SED 20, 7 April 2006.
The first piece of federal criminal legislation was the Punishment of Offences Act 1901 (Cth), which
provided punishments for infringements of the Commonwealth statutory prohibitions. Subsequently, a
number of federal offences were created as incidental to particular statutes: G Sawer, Australian Federal
Politics 1901–1929 (1956), 135.
56
Review of Sedition Laws
doctrine approved a marked expansion in Commonwealth legislative power, resulting
in a spate of federal laws to regulate public order.52
3.24 The first comprehensive piece of federal criminal legislation was the Crimes Act
1914 (Cth), which contained a number of offences against the government, including
treason and incitement to mutiny.53 The sedition offences were not included in the
Crimes Act. However, the War Precautions Act 1914 (Cth) gave the Governor-General
the authority to make regulations designed to suppress discussion of war aims,
alliances, and conscription policy and practice.54
3.25 The sedition provisions were inserted into the Crimes Act in 1920.55 These
provisions repeated in substance the common law definition of the offence,56 but were
somewhat broader in that they did not require proof of subjective intention and did not
require incitement to violence or public disturbance.57 Under ss 24C and 24D of the
Crimes Act, it was an offence to engage in a seditious enterprise with a seditious
intention or to write, print, utter or publish seditious words with a seditious intention.
3.26 ‗Seditious intention‘ was defined as:
An intention to effect any of the following purposes, that is to say:
52
53
54
55
56
57
(a)
to bring the Sovereign into hatred or contempt;
(b)
to excite disaffection against the Sovereign or the Government or the
Constitution of the United Kingdom or against either House of Parliament of the
United Kingdom;
(c)
to excite disaffection against the Government or Constitution of any of the
King‘s Dominions;
(d)
to excite disaffection against the Government or Constitution of the
Commonwealth or against either House of the Parliament of the Commonwealth;
(e)
to excite disaffection against the connexion of the King‘s Dominions under the
Crown;
Ibid, 155.
The constitutional validity of the Crimes Act 1914 (Cth) was upheld on the basis of the Commonwealth‘s
incidental power to protect its operations by creating criminal offences: R v Kidman (1915) 20 CLR 425.
For example, s 4(d) of the War Precautions Act 1914 (Cth) gave the Governor-General power to make
regulations in order to ‗prevent the spread of false reports or reports likely to cause disaffection to His
Majesty or public alarm, or to interfere with the success of His Majesty‘s forces by land or sea, or to
prejudice His Majesty‘s relations with foreign powers‘. See G Sawer, Australian Federal Politics 1901–
1929 (1956), 141. The Commonwealth could also prohibit the importation of literature with a ‗seditious
intent‘ pursuant to the Customs Act 1901 (Cth): see R Douglas, ‗Saving Australia from Sedition:
Customs, the Attorney-General‘s Department and the Administration of Peacetime Political Censorship‘
(2002) 30 Federal Law Review 135.
War Precautions Repeal Act 1920 (Cth) s 12. The provisions replicated those found in the Criminal Code
1899 (Qld), which were based on the British common law as outlined in Stephen‘s Digest of the Criminal
Law extracted earlier in this chapter: Commonwealth, Parliamentary Debates, House of Representatives,
23 November 1920, 6851 (L Groom).
G Sawer, Australian Federal Politics 1901–1929 (1956), 195.
See, eg, R v Aldred (1909) 22 Cox CC 1; R v Burns (1886) 16 Cox CC 355. See L Maher, ‗The Use and
Abuse of Sedition‘ (1992) 14 Sydney Law Review 287, 290.
3. Origins and History of Sedition Law
(f)
to excite His Majesty‘s subjects to attempt to procure the alteration, otherwise
than by lawful means, of any matter in the Commonwealth established by law of
the Commonwealth; or
(g)
to promote feelings of ill-will and hostility between different classes of His
Majesty‘s subjects so as to endanger the peace, order and good government of
the Commonwealth.58
57
3.27 The Crimes Act was further amended in 1926 to prohibit ‗unlawful associations‘
that advocated or encouraged the doing of any act purporting to have as an object the
carrying out of a seditious intention.59
Communist Party prosecutions
3.28 The advent of federal sedition offences coincided with the foundation of the
Communist Party of Australia (CPA), although this was not alluded to extensively in
the parliamentary debates.60 It is widely thought that the enactment of the federal
sedition provisions was prompted by concerns about the Bolshevik Revolution and its
impact on radical socialist activity in Australia.61 It has also been suggested that the
federal government was motivated to enact such provisions because it did not trust the
Labor-controlled states to suppress ‗subversive‘ activities in accordance with its
policies.62
3.29 It appears that the first federal sedition prosecution occurred in 1948.63 As noted
above, state sedition laws had been used on a number of occasions prior to this time.
While state sedition laws were primarily used to prosecute members of the CPA, there
is little information available on the manner or frequency of these prosecutions.64 It has
been reported that there were three sedition prosecutions brought against communists
in Queensland in the 1930s, and two prosecutions in Tasmania and Queensland in the
1940s. One defendant was charged for making pro-Nazi statements and the other, a
Jehovah‘s Witness, was charged for stating that people should not put their faith in the
King.65 One historian notes that these latter prosecutions received little attention
58
59
60
61
62
63
64
65
Crimes Act 1914 (Cth) s 24A. Paragraphs (b), (c) and (e) were repealed in 1986: see discussion below.
Crimes Act 1926 (Cth) s 17. These provisions were further strengthened by the Crimes Act 1932 (Cth).
See S Ricketson, ‗Liberal Law in a Repressive Age: Communism and the Law 1920–1950‘ (1976) 3
Monash University Law Review 101, 104.
L Maher, ‗Dissent, Disloyalty and Disaffection: Australia‘s Last Cold War Sedition Case‘ (1994) 16
Adelaide Law Review 1, 12; M Armstrong, D Lindsay and R Watterson, Media Law in Australia (3rd ed,
1995), 150; S Ricketson, ‗Liberal Law in a Repressive Age: Communism and the Law 1920–1950‘
(1976) 3 Monash University Law Review 101, 104.
Many Labor members had opposed the use of the War Precautions Acts to suppress discussion of war
aims and alliances: G Sawer, Australian Federal Politics 1901–1929 (1956), 166. See R Douglas,
‗Keeping the Revolution at Bay: The Unlawful Associations Provisions of the Commonwealth Crimes
Act‘ (2001) 22 Adelaide Law Review 259, 260.
R Douglas, ‗Saving Australia from Sedition: Customs, the Attorney-General‘s Department and the
Administration of Peacetime Political Censorship‘ (2002) 30 Federal Law Review 135, 138.
Ibid, 138.
R Douglas, ‗Law, War and Liberty: The World War II Subversion Prosecutions‘ (2003) 27 Melbourne
University Law Review 65, 75–76.
58
Review of Sedition Laws
outside the states in which they were brought, and on this basis concludes that there
may have been other state sedition prosecutions during this period.66
3.30 There is evidence that the Australian government sought advice on a number of
occasions about whether those who opposed Australia‘s involvement in the Second
World War might be prosecuted for sedition.67 It has been suggested that the provisions
were not used for this purpose because their scope was unclear and there were doubts
about whether juries would be likely to convict defendants for anti-war propaganda.68
3.31 The first federal sedition prosecution was brought in 1948 against a member of
the CPA, Gilbert Burns.69 Burns had been asked a hypothetical question at a public
debate about the likely attitude of the CPA in the event of a war between the Soviet
Union and the western powers. He was convicted and sentenced to six months
imprisonment for making the following statement:
If Australia was involved in such a war, it would be between Soviet Russia and
American and British Imperialism. It would be a counter-revolutionary war. It would
be a reactionary war. We would oppose the war, we would fight on the side of Soviet
Russia.70
3.32 On appeal, Burns argued that the federal provisions were constitutionally invalid
and that his words were not expressive of a seditious intention as they referred to a
hypothetical contingency. The High Court held that the provisions were
constitutionally valid, coming within the ‗incidental‘ head of power in s 51(xxxix) of
the Australian Constitution. The Court was evenly divided on the question whether the
particular words were expressive of a seditious intention, and the decision of the Chief
Justice prevailed. Latham CJ held that, in effect, unlike the common law, the statutory
provisions did not require incitement to violence or public disorder.71 He further
considered that the hypothetical nature of the statement did not exclude a finding that
the words were seditious:
A statement that the view of the Communist Party is that Russia should be supported
as against Australia and the British Sovereign in any war in which Australia, the
Sovereign, and Russia may be involved is a statement which is presented as a policy
to be approved and to be put into effect. Such a statement shows a present intention to
excite disaffection against the Sovereign and the Government. … ‗Exciting
disaffection‘ refers to the implanting or arousing or stimulating in the minds of people
a feeling or view or opinion that the Sovereign and the Government should not be
supported as Sovereign and as Government, but that they should be opposed, and
when the statement in question is made in relation to a war it means that they should,
if possible, be destroyed. Such advocacy is encouragement of and incitement to active
disloyalty.72
66
67
68
69
70
71
72
Ibid, 76.
Ibid, 76–77.
Ibid, 76.
Burns v Ransley (1949) 79 CLR 101.
Ibid, 114.
Ibid, 108.
Ibid, 108–109.
3. Origins and History of Sedition Law
59
3.33 A second sedition case came before the High Court in 1949.73 The General
Secretary of the CPA, Lance Sharkey, had prepared the following statement for
publication in response to a request by a newspaper journalist:
If Soviet forces in pursuit of aggressors entered Australia, Australian workers would
welcome them. Australian workers would welcome Soviet Forces pursuing aggressors
as the workers welcomed them throughout Europe when the Red troops liberated the
people from the power of the Nazis. … Invasion of Australia by forces of the Soviet
Union seems very remote and hypothetical to me. I believe the Soviet Union will go
to war only if she is attacked and if she is attacked I cannot see Australia being
invaded by Soviet troops. The job of the Communists is to struggle to prevent war and
to educate the mass of people against the idea of war. The Communist Party also
wants to bring the working class to power but if fascists in Australia use force to
prevent the workers gaining that power Communists will advise the workers to meet
force with force.74
3.34 Sharkey was convicted of uttering seditious words and sentenced to 13 months
imprisonment. The High Court upheld the conviction on the same basis as Burns v
Ransley, again holding that the hypothetical nature of the statement did not affect the
question of whether it could be considered seditious.
3.35 In both cases the High Court held that the test of seditious intention was
objective: that is, the prosecution did not need to prove that the accused subjectively
intended to ‗incite disaffection‘—rather, it needed to prove only that the words
objectively could be said to express a seditious intention. Further, the prosecutions
were sustained on the basis of an intention inferred from a hypothetical statement made
in response to a question about what the defendants might do in a factual scenario that
both considered improbable. In neither case was the statement directly intended to
incite violence or public disorder.
3.36 The High Court‘s interpretation of the federal sedition provisions—which, in
effect, enabled them to be used to punish expressions of disloyalty—stands in contrast
to the common law, which had in the previous century narrowed sedition to words or
behaviour that incited violence or public disorder. This interpretation also stands in
stark contrast to the approach adopted by the United States Supreme Court, which had
drawn a distinction between behaviour creating a ‗clear and present danger of public
disorder‘ and ‗doctrinal justification or prediction of the use of force under
hypothetical conditions at some indefinite future‘.75
3.37 The High Court‘s extension of the sedition offences can be explained by
reference to the evolving Cold War context and the desire of the Chifley Government
73
74
75
R v Sharkey (1949) 79 CLR 121.
Ibid, 138.
See, eg, Schneiderman v United States 320 US 156 (1942), 157–159. The Supreme Court retreated from
this test during the McCarthy era, adopting a stricter approach in order to prosecute Communist Party
members: see, eg, Dennis v United States 341 US 494 (1951). However, it later reformulated the test in a
more liberal manner, holding that the First Amendment to the United States Constitution does not permit
the State to proscribe advocacy of the use of force or law violation ‗except where such advocacy is
directed to inciting or producing imminent lawless action and is likely to incite or produce such action‘:
Brandenburg v Ohio 395 US 444 (1969), 447.
60
Review of Sedition Laws
to prove to the Australian public and the American and British Governments that it was
taking measures to combat the internal threat of communism.76 This is underscored by
the selective manner in which sedition was prosecuted.
The intensity of Australian political debate in the early Cold War period was such
that, had the Commonwealth and State authorities enforced the law of sedition
consistently, the courts would not have been equipped to cope with the avalanche of
sedition prosecutions that would have ensued. … A cursory reading of the daily
newspapers in the years 1947–1949 or the literature produced by all the political
parties reveals countless examples of inflammatory speech and expressive conduct
which clearly fell within the harsh sedition provisions of the Crimes Act 1914. Yet, in
an environment in which inflammatory political speech was commonplace, no
sedition prosecutions were brought against any of the CPA‘s equally determined and
ruthless opponents on the far right of the political spectrum.77
3.38 Although sedition appears not to have been widely prosecuted, there is evidence
that the federal investigative authorities frequently sought advice from the AttorneyGeneral‘s Department in the early 1950s to determine whether it could use sedition
laws to prosecute CPA members and activists.78 It has been suggested that more
sedition prosecutions were not instituted due to uncertainty caused by a pending appeal
brought by one CPA member who had been convicted of publishing an article
criticising Australia‘s involvement in the Korean War.79 It has also been suggested that
authorities were able to execute far-reaching search warrants on communists‘ offices
and homes when investigating sedition offences.80
3.39 The last Commonwealth sedition prosecution was in 1953, when a member of
the CPA was tried unsuccessfully for publishing an article derisive of the monarchy.81
The last sedition prosecution at the state or territory level appears to have been in South
Australia in 1960, where a newspaper editor was charged with seditious libel for
criticising the Royal Commission inquiring into the Stuart murder case.82
76
77
78
79
80
81
82
L Maher, ‗Dissent, Disloyalty and Disaffection: Australia‘s Last Cold War Sedition Case‘ (1994) 16
Adelaide Law Review 1, 39.
L Maher, ‗The Use and Abuse of Sedition‘ (1992) 14 Sydney Law Review 287, 303–304.
L Maher, ‗Dissent, Disloyalty and Disaffection: Australia‘s Last Cold War Sedition Case‘ (1994) 16
Adelaide Law Review 1, 14.
R Douglas, ‗The Ambiguity of Sedition: The Trials of William Fardon Burns‘ (2004) 9 Australian
Journal of Legal History 227, 246; L Maher, ‗The Use and Abuse of Sedition‘ (1992) 14 Sydney Law
Review 287, 306.
R Douglas, ‗The Ambiguity of Sedition: The Trials of William Fardon Burns‘ (2004) 9 Australian
Journal of Legal History 227, 247; L Maher, ‗Dissent, Disloyalty and Disaffection: Australia‘s Last Cold
War Sedition Case‘ (1994) 16 Adelaide Law Review 1, 24.
Sweeny v Chandler (Unreported, Sydney Court of Petty Sessions, 18 September 1953).
See L Maher, ‗The Use and Abuse of Sedition‘ (1992) 14 Sydney Law Review 287, 287; K Inglis, The
Stuart Case (1961), 279–292. Further, in 1961 Brian Cooper was successfully prosecuted in Papua New
Guinea pursuant to the sedition provisions of the Criminal Code 1899 (Qld) for statements he made to
indigenous people about potential means—including violent means—for achieving self-determination:
see Cooper v The Queen (1961) 105 CLR 177. For a discussion of this case, see W Stent, ‗An Individual
vs the State: The Case of BL Cooper‘ (1980) 79 Overland 60.
3. Origins and History of Sedition Law
61
Recent consideration
3.40 There are suggestions that prosecutions for sedition have been considered on a
number of occasions in more recent times. Most notably, in 1976 the AttorneyGeneral‘s Department was asked for advice about whether the remarks made by former
Prime Minister Gough Whitlam in the wake of the dismissal of the Labor
Government—to the effect that the Governor-General was ‗deceitful‘ and
‗dishonourable‘—could amount to sedition.83
3.41 In the early 1990s there was some discussion in the media about the possibility
of sedition offences being used to prosecute opponents to Australia‘s involvement in
the first Gulf War,84 but there is no evidence of formal consideration being given to
this by government officials.
Reform trends: modernise or abolish?
3.42 Law reform commissions in Canada, Ireland and the United Kingdom have
recommended the abolition of existing sedition offences85 on the basis that they are
unnecessary in light of more modern criminal offences, such as incitement and other
public order offences;86 undesirable in light of their political nature and history;87 and
inappropriate in modern liberal democracies where it is accepted that it is a
fundamental right of citizens to criticise and challenge government structures and
processes.88
Hope Royal Commission
3.43 In 1984, the Hope Royal Commission on Australia‘s Security and Intelligence
Agencies (the Hope Commission) examined federal sedition law as part of its review of
national security offences relevant to the Australian Security Intelligence
Organisation.89 The Hope Commission criticised the High Court decisions in Burns v
Ransley90 and R v Sharkey,91 stating that ‗mere rhetoric or statements of political belief
83
84
85
86
87
88
89
90
91
See H Lee, Emergency Powers (1984), 92. The opinion of the Attorney-General has never been
published.
See M Armstrong, D Lindsay and R Watterson, Media Law in Australia (3rd ed, 1995), 150.
Law Reform Commission (Ireland), Report on the Crime of Libel, LRC 41–1991 (1991), 10; Law Reform
Commission of Canada, Crimes Against the State, Working Paper 49 (1986), 45; Law Commission of
England and Wales, Working Paper No 72 Second Programme, Item XVIII Codification of the Criminal
Law—Treason, Sedition and Allied Offences (1977), 48.
Law Commission of England and Wales, Working Paper No 72 Second Programme, Item XVIII
Codification of the Criminal Law—Treason, Sedition and Allied Offences (1977), 48; Law Reform
Commission of Canada, Crimes Against the State, Working Paper 49 (1986), 36.
Law Reform Commission (Ireland), Report on the Crime of Libel, LRC 41–1991 (1991), 10; Law
Commission of England and Wales, Working Paper No 72 Second Programme, Item XVIII Codification
of the Criminal Law—Treason, Sedition and Allied Offences (1977), 48.
Law Reform Commission (Ireland), Report on the Crime of Libel, LRC 41–1991 (1991), 10; Law Reform
Commission of Canada, Crimes Against the State, Working Paper 49 (1986), 39.
Royal Commission on Australia‘s Security and Intelligence Agencies, Report on the Australian Security
Intelligence Organization (1985). The Commission was chaired by New South Wales Justice Robert
Hope.
Burns v Ransley (1949) 79 CLR 101.
R v Sharkey (1949) 79 CLR 121.
62
Review of Sedition Laws
should not be a criminal offence, however obnoxious they may be to constituted
authority‘.92
3.44 The Hope Commission recommended that the provisions be amended to include
the common law requirement of intention to create violence, public disturbance or
disorder.93 It also recommended the removal of those provisions referring to seditious
intention in relation to ‗any of the Queen‘s dominions‘, thus narrowing the scope of the
offences to seditious words or acts directed against the Australian Government or
Constitution.94 The federal provisions were amended in accordance with the Hope
Commission‘s recommendations in 1986.95
Gibbs Committee
3.45 Australia‘s federal sedition provisions were also reviewed by the Committee of
Review of Commonwealth Criminal Law (the Gibbs Committee) in 1991.96 The
Committee criticised the federal provisions for being archaic and excessively wide, and
recommended that they be ‗rewritten to accord with a modern democratic society‘.97
The Gibbs Committee considered that a separate offence of sedition should be retained,
but limited to inciting violence for the purpose of disturbing or overthrowing
constitutional authority.98 The Gibbs Committee therefore recommended the
replacement of the existing provisions with the following offences:
•
inciting the overthrow or supplanting by force or violence of the Constitution or
the established Government of the Commonwealth or the lawful authority of
that Government in respect of the whole or part of its territory;
•
inciting interference by force or violence with the lawful processes for
Parliamentary elections; and
•
inciting the use of force or violence by groups within the community, whether
distinguished by nationality, race or religion, against other such groups or
members thereof.99
Legislative amendments in 2005
3.46 The Gibbs Committee recommendations were not acted upon at the time.
However, in September 2005 the Australian Government announced its intention to
modernise the federal sedition provisions and adapt them to the counter-terrorism
context.100 Prior to this, Australia‘s sedition laws—like those in Britain and Canada—
92
93
94
95
96
97
98
99
100
Royal Commission on Australia‘s Security and Intelligence Agencies, Report on the Australian Security
Intelligence Organization (1985), [4.101].
Ibid, [4.101].
Ibid, [4.98].
Intelligence and Security (Consequential Amendments) Act 1986 (Cth) ss 11–14.
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991).
Ibid, [32.13].
Ibid, [32.13]–[32.18].
Ibid, [32.18].
J Howard (Prime Minister), ‗Counter-Terrorism Laws Strengthened‘ (Press Release, 8 September 2005).
3. Origins and History of Sedition Law
63
were thought to be suspended somewhere ‗between obsolescence and abolition‘.101 The
Australian Government stated that some of the amendments to the sedition provisions
effected by the Anti-Terrorism Act (No 2) 2005 (Cth) were in accordance with the
Gibbs Committee recommendations.102
3.47 Despite largely having fallen out of use in the last 50 years, the Australian
Government stated that in the counter-terrorism context, ‗sedition is just as relevant as
it ever was‘,103 particularly to ‗address problems with those who communicate inciting
messages directed against other groups within our community, including against
Australia‘s forces overseas and in support of Australia‘s enemies‘.104 The 2005
amendments to federal sedition offences reflect international initiatives to criminalise
activity deemed to promote terrorist violence.105 These amendments are discussed in
greater detail in the following Chapter.
101
102
103
104
105
L Maher, ‗Dissent, Disloyalty and Disaffection: Australia‘s Last Cold War Sedition Case‘ (1994) 16
Adelaide Law Review 1, 73. See also E Barendt, Freedom of Speech (2nd ed, 2005), 163; M Armstrong,
D Lindsay and R Watterson, Media Law in Australia (3rd ed, 1995), 150. Article 19 (Global Campaign for
Free Expression), Memorandum on the Malaysian Sedition Act 1948 (2003) <http://www.suaram.net/
suaram%20A19%20sedition%20memo.pdf> at 20 January 2006; Lord Denning, Landmarks in the Law
(1984), 295; H Lee, Emergency Powers (1984), 92.
Explanatory Memorandum, Anti-Terrorism Bill (No 2) 2005 (Cth), 88.
Senate Legal and Constitutional Committee—Australian Parliament, Anti-Terrorism Bill (No 2) 2005:
Transcript of Public Hearing, 14 November 2005, 4 (G McDonald).
J Howard (Prime Minister), ‗Counter-Terrorism Laws Strengthened‘ (Press Release, 8 September 2005).
In May 2005, the Council of Europe adopted a new Convention on the Prevention of Terrorism, which
requires States to criminalise public provocation to commit a terrorist offence: art 5(2). See the detailed
discussion in Chs 5 and 6.
4. Australian Sedition Laws
and Related Provisions
Contents
Introduction
New sedition offences in the Criminal Code
Other features of the provisions
Related federal legislation
Criminal Code
Crimes Act 1914
Electoral offences
Crimes (Foreign Incursions and Recruitment) Act 1978
ALRC‘s views
State and territory sedition laws
65
66
68
70
70
73
75
76
77
77
Introduction
4.1 This chapter summarises the current federal sedition provisions and other
aspects of federal law related to sedition, including the related offences of treason,
treachery and interfering with elections. These provisions are found in the Criminal
Code (Cth), the Crimes Act 1914 (Cth) and other federal legislation. The chapter also
considers state and territory laws on sedition, treason and related matters.
4.2 A deeper analysis of four of the current sedition offences and proposals for their
reform are contained in Chapter 8. Chapter 9 considers the offence of urging intergroup violence. Chapter 10 considers the appropriate defences and penalties for these
offences.
4.3 The Terms of Reference also ask the ALRC to consider the operation of Part IIA
of the Crimes Act. Part IIA contains provisions dealing with unlawful associations,
including those that advocate the doing of acts that have as an object the carrying out
of a ‗seditious intention‘.1 Part IIA is considered in Chapter 11.
1
Crimes Act 1914 (Cth) s 30A(1)(b).
66
Review of Sedition Laws
New sedition offences in the Criminal Code
4.4 The new federal sedition offences were enacted by Schedule 7 of the AntiTerrorism Act (No 2) 2005 and commenced on 11 January 2006. The Act contains a
range of measures designed to respond to the threat of terrorism by criminalising
certain terrorist acts and conferring further powers on law enforcement and intelligence
agencies.2
4.5 Schedule 7 repealed the old sedition offences found in ss 24A–24F of the
Crimes Act.3 The new offences are now located in Part 5.1 of the Criminal Code. This
is in keeping with the Australian Government‘s policy of shifting updated offences and
provisions dealing with criminal responsibility from the Crimes Act to the Criminal
Code (with the Crimes Act now mainly concerned with matters of practice and
procedure).4
4.6 The stated purposes of the new sedition provisions were to modernise the
language of the offences and to ‗address problems with those who incite directly
against other groups within the community‘.5
4.7 Five new offences were created in s 80.2 of the Criminal Code under the
heading ‗Sedition‘. The first, under the sub-heading Urging the overthrow of the
Constitution or Government, provides:
(1) A person commits an offence if the person urges another person to overthrow by
force or violence:
(a) the Constitution; or
(b) the Government of the Commonwealth, a State or a Territory; or
(c) the lawful authority of the Government of the Commonwealth.
(2) Recklessness applies to the elements of the offence under subsection (1) that it is:
(a) the Constitution; or
(b) the Government of the Commonwealth, a State or a Territory; or
(c) the lawful authority of the Government of the Commonwealth that the
first-mentioned person urges the other person to overthrow.
2
3
4
5
Explanatory Memorandum, Anti-Terrorism Bill (No 2) 2005 (Cth). See also Ch 1.
See Ch 3 for a brief history of the old sedition offences. A new s 30A(3) has been inserted into the
Crimes Act, defining a ‗seditious intention‘. However, this is applicable only in relation to the offences of
‗unlawful association‘ (see Ch 11).
Explanatory Memorandum, Anti-Terrorism Bill (No 2) 2005 (Cth). In its Inquiry into the sentencing of
federal offenders, the ALRC has proposed the repeal of Part IB of the Crimes Act and its replacement by
a dedicated federal Sentencing Act: Australian Law Reform Commission, Sentencing of Federal
Offenders, Discussion Paper 70 (2005), Proposal 2–1.
Commonwealth, Parliamentary Debates, House of Representatives, 3 November 2005, 103 (P Ruddock–
Attorney-General).
4. Australian Sedition Laws and Related Provisions
67
4.8 The second offence, Urging interference in Parliamentary elections, under
s 80.2(3)–(4), states:
(3) A person commits an offence if the person urges another person to interfere by
force or violence with lawful processes for an election of a member or members of a
House of the Parliament.
(4) Recklessness applies to the element of the offence under subsection (3) that it is
the lawful processes for an election of a member or members of a House of
Parliament that the first-mentioned person urges the other person to interfere with.
4.9 The third offence, Urging violence within the community, under s 80.2(5)–(6),
states:
(5) A person commits an offence if:
(a)
the person urges a group or groups (whether distinguished by race,
religion, nationality or political opinion) to use force or violence against
another group or other groups (as so distinguished); and
(b)
the use of the force or violence would threaten the peace, order and good
government of the Commonwealth.
(6) Recklessness applies to the element of the offence under subsection (5) that it is a
group or groups that are distinguished by race, religion, nationality or political
opinion that the first-mentioned person urges the other person to use force or violence
against.
4.10 The fourth offence, Urging a person to assist the enemy, under s 80.2(7), states:
(7) A person commits an offence if:
(a)
the person urges another person to engage in conduct; and
(b)
the first-mentioned person intends the conduct to assist an organisation or
country; and
(c)
the organisation or country is:
(i)
at war with the Commonwealth, whether or not the existence of a
state of war has been declared; and
(ii)
specified by Proclamation made for the purpose of paragraph
80.1(1)(e) to be an enemy at war with the Commonwealth.
4.11 The fifth offence, Urging a person to assist those engaged in armed hostilities,
under s 80.2(8), states:
(8) A person commits an offence if:
(a)
the person urges another person to engage in conduct; and
(b)
the first-mentioned person intends the conduct to assist an organisation or
country; and
68
Review of Sedition Laws
(c)
the organisation or country is engaged in armed hostilities against the
Australian Defence Force.
4.12 Each of the five offences carries a maximum penalty of imprisonment for seven
years. This follows the 1991 recommendation of the Committee of Review of
Commonwealth Criminal Law (Gibbs Committee), which argued that ‗the more
specific nature of the proposed offence[s]‘ warranted an increase from the maximum
penalty of imprisonment for three years specified for the old sedition offences under
the Crimes Act, ss 24A–24D.6
Other features of the provisions
Fault elements
4.13 There has been considerable confusion in the public debate over the fault
elements required for the new sedition offences. IP 30 noted that much of this
uncertainty stemmed from a lack of understanding about how the physical and fault
elements work under the Criminal Code.7
4.14 The fault element for the act of ‗urging‘ another person to engage in the relevant
conduct is intention.8 Three of the new sedition offences expressly contain recklessness
as a fault element in relation to some of the physical elements required to constitute the
offence—that is, the circumstances or results arising from the person‘s ‗urging‘. Issues
concerning the application of fault elements to the offences are discussed in detail in
Chapter 8.
Urging group-based violence
4.15 The Anti-Terrorism Act (No 2) 2005 (Cth) created a new offence of urging a
group or groups to use force or violence against another group or other groups.
4.16 Section 80.2(5) proscribes only the urging of force or violence—it does not
extend to vilification or incitement of racial hatred. The offence is limited in that it
applies only where a person urges a group or groups to use force or violence against
another group or other groups. It would not cover the urging of an individual to use
force or violence against a group (with the distinguishing characteristics mentioned
above), nor the urging of a group to use force or violence against an individual.9
4.17 Section 80.2(5)(b) also requires that the force or violence that is urged must
threaten the ‗peace, order and good government of the Commonwealth‘. Both limbs
must be proven for the offence to be complete.
6
7
8
9
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991), 307, [32.19].
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), [3.21]–[3.34].
Criminal Code (Cth) s 5.6.
Explanatory Memorandum, Crimes Act Amendment (Incitement to Violence) Bill 2005 (Cth), 4; B Saul,
‗Speaking of Terror: Criminalising Incitement to Violence‘ (2005) 28 University of New South Wales
Law Journal 868, 877; N Roxton Shadow Attorney-General, Submission SED 63, 28 April 2006.
4. Australian Sedition Laws and Related Provisions
69
Extra-territorial application
4.18 The sedition and treason10 offences under Division 80 of the Criminal Code are
characterised as ‗Category D‘ offences—as are the terrorism offences created in 200211
in Divisions 101–104 of the Criminal Code.12 This designation means that, by virtue of
s 15.4 of the Criminal Code, the offences apply:
•
whether or not the conduct constituting the offence occurs in Australia; and
•
whether or not a result of the conduct constituting the alleged offence occurs in
Australia.
4.19 The implications of this extra-territorial application are considered in Chapter 8.
Requirement of Attorney-General’s consent
4.20 Under s 80.5, proceedings for an offence under these provisions may not be
commenced without the written consent of the Attorney-General. According to the
Explanatory Memorandum, this provision is designed to provide an additional
safeguard to a person charged with a sedition offence.13 This matter is also discussed in
Chapter 8.
Defences
4.21 Section 80.3 of the Criminal Code provides for a specific defence to the treason
and sedition offences in Division 80, where the acts in question were done ‗in good
faith‘. The provisions in s 80.3 substantially replicate those in the old s 24F of the
Crimes Act.
4.22 Under s 80.3, comments made in good faith must, for example, point out
mistakes in government policy,14 urge people to lawfully change laws or policies,15 or
comment on matters that produce feelings of hostility between groups with a view to
bringing about removal of those matters.16 Section 80.3(1)(f) also allows the
publication in good faith of a report or commentary about a matter of public interest.
4.23 In deciding whether an act was done in good faith, the court may look to matters
such as whether the act was done: with a purpose intended to be prejudicial to the
10
11
12
13
14
15
16
Criminal Code (Cth) s 80.1(7).
Security Legislation Amendment (Terrorism) Act 2002 (Cth) sch 1.
Criminal Code (Cth) ss 101.1(2), 101.2(5), 101.4(4), 101.5(4), 101.6(3), 102.9, 103.1(3), 104.8. See the
discussion below.
Explanatory Memorandum, Anti-Terrorism Bill (No 2) 2005 (Cth), 93.
Criminal Code (Cth) s 80.3(1)(a).
Ibid s 80.3(1)(c).
Ibid s 80.3(1)(d).
70
Review of Sedition Laws
safety or defence of the Commonwealth;17 to assist an enemy;18 or with the intention of
causing violence or creating public disorder or a public disturbance.19
4.24 Defences and proposals for reform are discussed in detail in Chapter 10.
Related federal legislation
4.25 The previous sedition offences under the Crimes Act were part of a grouping of
offences relating to the security and defence of the Commonwealth. In 1991, the Gibbs
Committee recommended reform of these provisions to modernise their language,
clarify their terms and bring greater consistency to their penalties.20 However, aside
from changes such as removal of the death penalty, many of these offences have
remained unchanged since their enactment in 1914. The response to modern threats
against the state posed by terrorism has generally been to enact a new set of offences in
the Criminal Code rather than rely on these older provisions.21
4.26 Some submissions and commentary suggest that the sedition provisions in s 80.2
are unnecessary as they overlap with existing federal offences, or may be covered by
the offence of incitement to commit an existing offence. Under s 11.4 of the Criminal
Code it is an offence to urge the commission of another offence. Therefore, some
conduct covered by the offences in s 80.2 of the Criminal Code could overlap with
conduct that constitutes incitement to commit other offences—for example, the
terrorism offences under Part 5.3 of the Criminal Code.
4.27 This section of the chapter considers those existing offences in the Criminal
Code, the Crimes Act and other federal legislation, and their interaction with the
sedition provisions. The relationship between sedition and incitement to other offences
is considered in greater detail in Chapter 8.
Criminal Code
Treason
4.28 The offence of treason was moved into the Criminal Code in 2002.22
Section 80.1 of the Code substantially replicates the former treason offence in s 24 of
the Crimes Act, although some amendments were made in accordance with the
17
18
19
20
21
22
Ibid s 80.3(2)(a).
Ibid s 80.3(2)(b).
Ibid s 80.3(2)(f).
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991), ch 30–37.
Part 5.3 of the Criminal Code sets out a raft of terrorism offences. The operation and effectiveness the
counter-terrorism laws has been recently reviewed by the Security Legislation Review Committee, as a
statutory requirement of the Security Legislation Amendment (Terrorism) Act 2002 (Cth). At the time of
writing the findings of the review had not been released to the public. The Committee‘s terms of
reference are available at <www.ag.gov.au/slrc> (19 May 2006).
Security Legislation Amendment (Terrorism) Act 2002 (Cth) sch 1.
4. Australian Sedition Laws and Related Provisions
71
recommendations of the Gibbs Committee, as well as to modernise the language and
make it consistent with the drafting style used in the Criminal Code.23
4.29 Under s 80.1(1), a person commits treason if he or she:
•
causes the death of, harm to, or imprisons or restrains the Sovereign, the heir
apparent of the Sovereign, the consort of the Sovereign, the Governor-General
or the Prime Minister;
•
levies war, or does any act preparatory to levying war, against the
Commonwealth;
•
engages in conduct that assists, by any means whatever, with intent to assist, an
enemy at war with the Commonwealth;
•
engages in conduct that assists, by any means whatever, with intent to assist,
another country or organisation engaged in armed hostilities against the
Australian Defence Force;
•
instigates a person who is not an Australian citizen to make an armed invasion
of the Commonwealth or a Territory of the Commonwealth; or
•
forms an intention to do any of the above acts and manifests that intention by an
overt act.
4.30 The penalty for an act of treason is imprisonment for life. Under s 80.1(1A)
there is a defence to the charges of assisting the enemy where the person engages in the
conduct ‗by way of, or for the purposes of, the provision of aid of a humanitarian
nature‘.24 In common with the sedition offences, the defence of ‗good faith‘ is
available under s 80.3.
4.31 There is significant overlap between treason in s 80.1 and the sedition offences,
particularly in relation to the provisions concerning assisting the enemy or those
engaged in armed hostilities against the Australian Defence Force (ADF) in s 80.2(7)–
(8) of the Criminal Code. Under s 80.2(7), it is an offence for a person to urge another
to assist an organisation or country at war with the Commonwealth, and under
s 80.1(1)(e) it is treason to engage in conduct that assists, by any means whatever, an
enemy at war with the Commonwealth.
23
24
Explanatory Memorandum, Security Legislation Amendment (Terrorism) Bill 2002 (Cth).
The defendant bears the evidential onus under s 13.3 to raise this matter, after which the prosecution must
negate it beyond reasonable doubt.
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Review of Sedition Laws
4.32 A number of submissions to this Inquiry highlighted the overlap issue,25
although Patrick Emerton notes that the new offence under s 80.2(7) is broader, since
the offender need only urge treasonous conduct, rather than intend both treasonous
conduct and treasonous intentions, on the part of others.26
4.33 In Chapter 8, the ALRC suggests that the direct overlap is unwarranted in these
circumstances and proposes that s 80.2(7) and (8) be repealed.27 Chapter 8 also
highlights concerns with the framing of aspects of the treason offences, and makes a
number of proposals for reform.28
Terrorism offences
4.34 Part 5.3 of the Criminal Code was enacted in 2002 as part of the Australian
Government‘s counter-terrorism legislative package.29 The Criminal Code was
amended to: transfer the offence of treason from the Crimes Act to the Criminal Code
(as mentioned above); introduce a definition of a ‗terrorist act‘ to the Code and create
specific terrorism offences; and introduce an administrative power to proscribe terrorist
organisations.
4.35 Division 100.1 of the Criminal Code defines a ‗terrorist act‘ as an action or
threat that is made with the intention both of ‗advancing a political, religious or
ideological cause‘ and ‗coercing, or influencing by intimidation‘ a governmental
authority in Australia or overseas. Under s 100.1(2) and (3), action falls within the
definition of a terrorist act where it causes serious physical harm or death to a person,
or endangers human life; causes serious damage to property; creates a serious risk to
the health and safety of the public; seriously interferes with, disrupts, or destroys an
electronic system; and is not advocacy, protest, dissent or industrial action.
4.36 Division 101 creates a number of serious offences, including:
•
engaging in a terrorist act;30
•
providing or receiving training connected with a terrorist act;31
•
possessing things connected with a terrorist act;32
25
B Saul, Submission SED 52, 14 April 2006; John Fairfax Holdings Ltd, News Limited and Australian
Associated Press, Submission SED 56, 18 April 2006; Federation of Community Legal Centres (Vic),
Submission SED 33, 10 April 2006; J Pyke, Submission SED 18, 10 April 2006; National Association for
the Visual Arts, Submission SED 30, 11 April 2006; P Emerton, Submission SED 36, 10 April 2006.
P Emerton, Submission SED 36, 10 April 2006.
Proposal 8–8.
Proposal 8–9 to 8–11.
Security Legislation Amendment (Terrorism) Act 2002 (Cth).
Criminal Code (Cth) s 101.1, punishable by a maximum of life imprisonment.
Ibid s 101.2, punishable by imprisonment for up to 15 or 25 years, depending upon the circumstances.
Ibid s 101.4, punishable by imprisonment for up to 10 or 15 years, depending upon the circumstances.
26
27
28
29
30
31
32
4. Australian Sedition Laws and Related Provisions
•
collecting or making documents likely to facilitate a terrorist act;33 or
•
doing other acts in preparation for, or planning, a terrorist act.34
73
4.37 Urging someone to overthrow the Australian Government by force or violence
under s 80.2(1) would cover some of the same conduct required to establish the offence
of incitement to commit a terrorist act.35 However, the practical steps to be taken in
proving an offence under s 80.2(1) would be quite different to those under
Division 101. Under the sedition offences, there is no need to prove a particular
ideological or political intention on the part of the person undertaking the terrorist act.
Proving that a person who urges the commission of a terrorism offence is guilty of the
offence of incitement under the Criminal Code requires evidence that the person
intended that the offence incited be committed.36 The offences under s 80.2 currently
require only an intention to urge the conduct, not that the person intended that the
crime urged be committed.37 This distinction is discussed in greater detail in Chapter 8.
Causing harm to public officials
4.38 Section 147.1–147.2 of the Criminal Code makes it an offence to harm or
threaten to harm a Commonwealth public official. This offence applies where the
person threatens or harms the official because of the official‘s status or because of his
or her conduct in an official capacity. Penalties of imprisonment for 10–13 years apply
depending on whether the person is a Commonwealth law enforcement officer or
another public official. It is also an offence to harm or threaten a former
Governor-General, former Minister or a former Parliamentary Secretary.38
Crimes Act 1914
4.39 Even after the relocation of the treason and sedition offences to the Criminal
Code, Part II of the Crimes Act retains a number of other serious ‗offences against the
government‘, which may be related to sedition.
Treachery
4.40 Under s 24AA, a person commits ‗treachery‘ if he or she acts with intent to
overthrow the Constitution by revolution or sabotage, overthrow the government of a
state or the Commonwealth by an act of force or violence, or participates in acts of war
against proclaimed countries. Treachery carries a maximum penalty of life
imprisonment.
33
34
35
36
37
38
Ibid s 101.5, punishable by imprisonment for up to 10 or 15 years, depending upon the circumstances.
Ibid s 101.6, punishable by a maximum of life imprisonment.
B Saul, Submission SED 52, 14 April 2006.
Criminal Code (Cth) s 11.4(2).
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
Criminal Code (Cth) ss 147.1, 147.1(2), 147.2, 147.2(3).
74
Review of Sedition Laws
4.41 The Gibbs Committee was of the view that, given its similarity to the treason
offence, the offence of treachery should be repealed and a new provision created,
making it an offence for an Australian citizen or resident to help a state or any armed
force against which any part of the ADF is engaged in armed hostilities.39 This
wording is now part of the treason and sedition offences in the Criminal Code.
Sabotage
4.42 Under s 24AB, a person commits an act of ‗sabotage‘ if he or she destroys,
damages or impairs any article used by the ADF or that relates directly to the defence
of the Commonwealth, with the intention of prejudicing the safety or defence of the
Commonwealth. Sabotage carries a maximum penalty of 15 years imprisonment.
4.43 As with the treachery offence, the Gibbs Committee noted that no prosecution
had ever been brought under s 25AB, and that a simplified and narrower version of the
offence should be adopted.40
4.44 In common with the new sedition offences, a prosecution for treachery or
sabotage may be instituted only with the consent of the Attorney-General.41
Inciting mutiny
4.45 Section 25 of the Crimes Act creates an offence of inciting disaffection with, or
attempting to interfere with the operations of, the ‗Queen‘s Forces‘, including inciting
mutiny or ‗seducing‘ any person in the military from his duty and allegiance.42 The
penalty is life imprisonment. The Gibbs Committee recommended repeal of this
provision on the basis that the Defence Force Discipline Act 1982 (Cth) already
contains offences of mutiny and incitement to mutiny.43
Assisting prisoners of war to escape
4.46 Section 26 makes it an offence, with a penalty of life imprisonment, for a person
to assist prisoners of war to escape. The Gibbs Committee noted the severity of the
penalty for this offence, and compared it with the five-year penalty for assisting a
civilian prisoner to escape under s 46 of the Act. The Committee concluded that this
offence should be removed from an Act of general application such as the Crimes
Act.44
39
40
41
42
43
44
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991), [30.44]–[30.51].
Ibid, [33.10].
Crimes Act 1914 (Cth) s 24AC.
Ibid s 25. The ‗Queen‘s Forces‘ is defined to mean the Australian Defence Force or ‗the armed forces of
the United Kingdom or any British possession‘.
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991), [34.12].
Ibid, [35.7].
4. Australian Sedition Laws and Related Provisions
75
Unlawful drilling
4.47 ‗Unlawful drilling‘ involves training or drilling others ‗to the use of arms or the
practice of military exercises, movements, or evolutions‘,45 contrary to a proclamation
of the Governor-General. No proclamation for the purpose of this section has been
made. There is some overlap between this provision and offences under the Crimes
(Foreign Incursions and Recruitment) Act 1978 (Cth), which is discussed below.
Intentionally damaging or destroying Commonwealth property
4.48 Under s 29, a person who intentionally destroys or damages any property,
whether real or personal, belonging to the Commonwealth or to any Commonwealth
public authority is guilty of an offence, punishable by imprisonment for up to 10 years.
Offences under Part IIA of the Crimes Act
4.49 Part IIA of the Crimes Act contains a range of provisions concerning unlawful
associations. Chapter 11 considers this area of the law in detail, and Chapter 8 deals
with s 30C (advocating overthrow of the Constitution), which substantially overlaps
with the offence in s 80.2(1).
Electoral offences
4.50 As discussed above, one of the new sedition offences (s 80.2(3) of the Criminal
Code) involves urging others to interfere by force or violence with parliamentary
elections. Under s 28 of the Crimes Act, it is also an offence punishable by
imprisonment for three years, where a person ‗by violence or by threats or intimidation
of any kind, hinders or interferes with the free exercise or performance, by any other
person, of any political right or duty‘.
4.51 A related summary offence also exists under s 327(1) of the Commonwealth
Electoral Act 1918 (Cth), which provides that a person ‗shall not hinder or interfere
with the free exercise or performance, by any other person, of any political right or
duty that is relevant to an election under this Act‘. The penalty for breach is a fine of
$1,000, or imprisonment for six months, or both. Under the Referendum (Machinery
Provisions) Act 1984 (Cth) there is a mirror offence providing that a person shall not
hinder or interfere with the free exercise or performance, by any other person, of any
political right or duty that is relevant to an election or referendum‘.46 These offences
are considered in more detail in Chapter 8.
45
46
Military evolutions are training exercises to accustom troops to the different movements required, for
example, in defensive or offensive operations.
Referendum (Machinery Provisions) Act 1984 (Cth) s 120.
76
Review of Sedition Laws
Crimes (Foreign Incursions and Recruitment) Act 1978
4.52 The Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) contains a
number of offences preventing persons from recruiting, training or organising people in
Australia for armed incursions or operations in another country. Under the Act, it is an
offence to:
•
enter into a foreign state and engage in hostile activity in that foreign state (s 6);
•
enter into a foreign state with the intent to engage in hostile activity in that
foreign state (s 6);
•
undertake preparation for the above purpose (including training, giving money
or goods to any body or association promoting these activities) (s 7);
•
recruit persons to join organisations engaged in hostile activities against foreign
governments (s 8); or
•
recruit persons to serve in or with an armed force in a foreign state (s 9).
4.53 ‗Hostile activities‘ under the Act include doing an act with the intention of
achieving: overthrow by force or violence of the government of the foreign state;
causing the public of the foreign state to be in fear of suffering death or injury; causing
the death or injury to the head of state or public officials; or damaging the foreign
government‘s property.47
4.54 The Act does not apply to acts done in defence of Australia, or in the course of a
person‘s duty to the Commonwealth.48 An offender must be an Australian citizen,
permanent resident or resident in Australia for at least a year.49 Proceedings under the
Act require the Attorney-General‘s written consent.50
4.55 The offences under s 80.2(7) and (8) overlap to some extent with these
provisions. Under s 9(d) of the Crimes (Foreign Incursions and Recruitment) Act it is
an offence to do ‗any act or other thing with the intention of facilitating or promoting
the recruitment of persons to serve in any capacity in or with such an armed force‘.
Presumably this could include urging another to assist the enemy or those engaged in
armed hostilities with the ADF under s 80.1(1)(e)–(f) or s 80.2(7) and (8).51
47
48
49
50
51
Ibid s 6(3).
Ibid s 5.
Ibid s 6(2).
Ibid s 10.
See Proposal 8–8.
4. Australian Sedition Laws and Related Provisions
77
ALRC’s views
4.56 While it is outside the Inquiry‘s Terms of Reference and timeframe to conduct a
full review of all federal law relating to the security of the Commonwealth, it is clear
that while attention has been given to modernisation of some of the Crimes Act
offences, many still languish as ‗dead-letter‘ laws, which are never prosecuted. These
provisions are couched in archaic language and many of them effectively have been
superseded by new provisions in the Criminal Code and elsewhere.
4.57 Consequently, the ALRC proposes that the Australian Government initiate a
review of the remaining offences contained in Part II of the Crimes Act (and ss 30J and
30K in Part IIA)52 to determine which offences merit retention, modernisation and
relocation to the Criminal Code, and which should be abolished because they are
redundant or otherwise inappropriate.
Proposal 4–1
The Australian Government should initiate a review of the
remaining offences contained in Part II of the Crimes Act 1914 (Cth) to
determine which offences merit retention, modernisation and relocation to the
Criminal Code (Cth), and which offences should be abolished. This review
should include the offences in ss 24AA, 24AB and 25–29 of the Crimes Act.
State and territory sedition laws
4.58 Federal sedition law proscribes, among other things, urging the overthrow by
force or violence of ‗the Government of the Commonwealth, a State or a Territory‘.53
However, the Commonwealth does not intend to ‗cover the whole field‘54 in relation to
sedition—which might render state and territory laws inoperative under s 109 of the
Australian Constitution.55
4.59 Section 80.6 of the Criminal Code states that the treason and sedition provisions
of Division 80 are ‗not to apply to the exclusion of a law of a State or a Territory to the
extent that the law is capable of operating concurrently‘ with them.
4.60 Commonwealth, state and territory laws define sedition in different terms. For
example, some state laws seek to protect the Sovereign, Government and Constitution
of the United Kingdom from seditious conduct.56 In contrast, the Criminal Code
52
53
54
55
56
See Ch 11, Proposal 11–2.
Criminal Code (Cth) s 80.2(1)(b) (emphasis added).
See Viskauskas v Niland (1983) 153 CLR 280.
Section 109 provides that the laws of the Commonwealth shall prevail over those of a state, to the extent
of any inconsistency.
Criminal Code 1899 (Qld) s 44(b); Criminal Code 1913 (WA) s 44; Criminal Code 1924 (Tas) s 67.
78
Review of Sedition Laws
provisions apply only to sedition against the Australian Constitution or the
Government of the Commonwealth or an Australian state or territory.57
4.61 In New South Wales and Victoria, the common law offence of seditious libel
remains in effect.58 In New South Wales, the common law offence is referred to by the
Imperial Acts Application Act 1969 (NSW), which states that following a conviction
for seditious libel the court may give an order for the seizure of all copies of the libel.
The Act refers to seditious libel as:
tending to bring into hatred or contempt the person of Her Majesty, Her heirs or
successors, or the government and constitution of the State of New South Wales as by
law established, or either House of Parliament, or to excite Her Majesty‘s subjects to
attempt the alteration of any matter as by law established, otherwise than by lawful
means …59
4.62 The provision does not appear to codify the law of seditious libel, as it does not
establish or define an offence, but simply provides for court orders consequential to a
conviction.60
4.63 In Victoria, s 316 of the Crimes Act 1958 (Vic) makes it an offence to take an
oath to, among other things, ‗engage in any mutinous or seditious enterprise‘. The
nature of a seditious enterprise is not defined, leaving this to the common law.
4.64 Queensland, Western Australia, Tasmania and the Northern Territory have
statutory sedition offences. The offence provisions, and the relevant defences, are
framed in a similar manner to those in the repealed Crimes Act 1914 (Cth)
provisions61—which were based on similar provisions in the Criminal Code (Qld).
However, these state and territory laws do not require an intention to cause violence or
disorder to be proved in order for a person to be convicted of sedition.62
4.65 In Queensland, sedition offences are contained in the Criminal Code (Qld).63
The offences concern engaging in a seditious enterprise or publishing seditious words,
and are punishable by imprisonment for a maximum of three years (or seven years if
previously convicted).64 The definition of ‗seditious intention‘ refers to sedition
directed at the Sovereign, Government or Constitution of the United Kingdom or of
57
58
59
60
61
62
63
64
Criminal Code (Cth) s 80.2(1). See also the references to the states and territories in the good faith
defence provisions: Criminal Code (Cth) s 80.3.
See Butterworths, Halsbury’s Laws of Australia, vol 21 Human Rights, [130–12080].
Imperial Acts Application Act 1969 (NSW) s 35(1).
For more on the history and interpretation of s 35, see G Griffith, Sedition, Incitement and Vilification:
Issues in the Current Debate: Briefing Paper No 1/06 (2006), 18.
Crimes Act 1914 (Cth) ss 24A–24D, 24F.
See Butterworths, Halsbury’s Laws of Australia, vol 21 Human Rights, [130–12075], citing Cooper v The
Queen (1961) 105 CLR 177.
Criminal Code 1899 (Qld) s 52.
Ibid s 52(1)–(2).
4. Australian Sedition Laws and Related Provisions
79
Queensland, or against the Parliaments of the United Kingdom or Queensland, or
against the administration of justice.65
4.66 In Western Australia, the Criminal Code (WA) provides for the offences of
conspiring to carry into execution a seditious enterprise and publishing seditious
words.66 The offences are punishable by imprisonment for a maximum of three years.67
The definition of ‗seditious intention‘ refers to sedition directed against the Sovereign
or the Constitution or Government of the United Kingdom, the Commonwealth or
Western Australia; the Parliament of the United Kingdom, the Commonwealth or
Western Australia; or against the administration of justice.68
4.67 In Tasmania, the Criminal Code (Tas) provides for the offences of carrying into
execution a seditious intention and publishing words or writing expressive of a
seditious intention.69 The definition of ‗seditious intention‘ refers to sedition directed
against the Sovereign or the Constitution or Government of the United Kingdom, the
Commonwealth or Tasmania; or against the United Kingdom, Commonwealth or
Tasmanian Parliaments; or against the administration of justice in the United Kingdom,
the Commonwealth or Tasmania.70
4.68 In addition, Chapter V of the Tasmanian legislation, dealing with treason,71
includes an offence directed to ‗inciting traitorous conduct‘, which may best be
characterised as a sedition provision. It applies to any person who ‗advisedly attempts‘:
(a) to seduce any person serving in His Majesty's forces by sea or land from his duty
and allegiance to His Majesty;
(b) to incite any such person to commit an act of mutiny or any traitorous or mutinous
act; or
(c) to incite any such person to make or endeavour to make a mutinous assembly, or
to commit any traitorous or mutinous practice whatever …72
4.69 Northern Territory legislation provides for offences in relation to engaging in a
seditious enterprise or publishing seditious words.73 Both offences are punishable by
65
66
67
68
69
70
71
72
73
Ibid s 44(b).
Criminal Code 1913 (WA) s 52.
Ibid s 52.
Ibid s 44.
Criminal Code 1924 (Tas) s 67.
Ibid s 66(1)(b). The Code also creates an offence in relation to libels on foreign powers where any person,
without lawful justification, publishes writing tending to degrade, revile, or expose to hatred or contempt
the people or government of any foreign State, or any officer or representative thereof: Criminal Code
1924 (Tas) s 68.
Criminal Code 1924 (Tas) ch V: ‗Treason and Other Crimes Against the Sovereign‘s Person or
Authority‘.
Ibid s 62.
Criminal Code 1993 (NT) ss 45–46.
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Review of Sedition Laws
imprisonment for a maximum of three years.74 The definition of ‗seditious intention‘
refers to sedition directed at the Northern Territory government or legislative assembly,
or at the administration of justice in the Territory—but there is no reference to the
Sovereign.75
4.70 In South Australia, the common law offence of seditious libel was abolished in
1992, along with a number of other common law offences.76 The ACT abolished the
common law offence of seditious libel in 1996 as part of a measure intended to remove
‗outdated common law rules‘.77
4.71 The abolition of seditious libel in the ACT was a by-product of defamation law
reform.78 In 1995, the Community Law Reform Committee of the ACT recommended
abolition of seditious libel—along with the other common law misdemeanours of
criminal, blasphemous and obscene libel—in the course of its defamation inquiry. The
Committee considered that these offences were ‗no longer appropriate in the ACT‘.79
4.72 In Chapter 2, the ALRC proposes that the term ‗sedition‘ be removed from the
federal statute book. Consideration of state and territory sedition laws indicates that
they are as contentious as—or in many cases more contentious than—the original
federal Crimes Act provisions. Proposal 2–2 states that in the interests of improving
and harmonising the laws in this area across Australia, the Australian Government
should initiate a process through the Standing Committee of Attorneys-General to
remove the term ‗sedition‘ from state and territory laws.
74
75
76
77
78
79
Ibid s 24E.
Ibid s 44. Compare Crimes Act 1914 (Cth) s 24A.
Criminal Law Consolidation Act 1935 (SA) sch 11.
Law Reform (Abolitions and Repeals) Act 1996 (ACT) s 4.
Explanatory Memorandum, Law Reform (Abolition and Repeals) Bill 1995 (ACT).
Community Law Reform Committee of the Australian Capital Territory, Defamation, CLRC 10 (1995),
17.
5. International Framework
Contents
Introduction
Status of international law
International law and terrorism
United Nations response to the threat of terrorism
Balancing anti-terrorism measures with human rights
Article 20 of the ICCPR: incitement
Article 4 of the ICCPR: derogation
International human rights law: article 19 of the ICCPR
Explanation of article 19 of the ICCPR
Question of compatibility
Submissions and consultations in the ALRC Inquiry
ALRC‘s views
81
82
83
83
85
85
86
87
87
89
90
92
Introduction
5.1 International law is relevant to an analysis of Australian sedition laws in two
seemingly contradictory ways. First, international law sets out a number of
requirements with which Australia is obliged to comply to protect the human rights of
people subject to Australian law. Secondly, international law increasingly recognises
the need for states to take action to counter the threat of terrorism.
5.2 Any measures taken by the Australian Government—such as the enactment of
sedition laws—must be compatible with Australia‘s obligations under international law
to respect human rights, including freedom of expression.
5.3 This chapter considers the status of international law and its interaction with
Australian domestic law. The chapter then goes on to consider how international law
interacts with Australia‘s sedition provisions.
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Review of Sedition Laws
Status of international law
5.4 The status of international law, and its intersection with Australian domestic
law, are explained in detail in Issues Paper 30 (IP 30).1 However, the following
essential points should be noted:
•
In Australian law, international treaties are not self-executing.2 This means that
an international treaty to which Australia is a party only becomes part of
Australian law to the extent that it is implemented by way of Australian
domestic legislation.3
•
The International Covenant on Civil and Political Rights 19664 (ICCPR) is an
example of a treaty that has been ratified by Australia but has not been fully
incorporated into Australian law.
•
Australian courts cannot refuse to recognise or apply an Australian statutory
provision merely because the provision is inconsistent with a principle of
international law, or an international treaty to which Australia is a party.5
•
Australia‘s international law obligations are relevant to the interpretation of
Australian statutes,6 particularly where the meaning of the provision in question
is ‗ambiguous‘, ‗obscure‘ or where the ordinary process of construction would
give rise to ‗a result that is manifestly absurd or … unreasonable‘.7 International
obligations are also relevant to the development of the common law.
•
The courts will generally interpret legislation in a way that is inconsistent with
Australia‘s international law obligations only if there is ‗a clear indication that
the legislature has directed its attention to the rights or freedoms in question, and
has consciously decided upon abrogation or curtailment‘.8
•
An inconsistency between an Australian statutory provision and Australia‘s
international obligations may have consequences at the international level. It
may, for instance, lead to proceedings being commenced against Australia in a
United Nations (UN) tribunal or committee.
1
2
3
4
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), [5.3]–[5.11].
This contrasts with some countries, such as the United States: see United States Constitution art II, s 2.
Dietrich v The Queen (1992) 177 CLR 292, 305.
International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into
force generally on 23 March 1976).
Polites v Commonwealth (1945) 70 CLR 60, 69; Horta v Commonwealth (1994) 181 CLR 183, 195.
For a detailed exposition of the influence of international law (and especially international human rights
law) on Australian municipal law, see R Piotrowicz and S Kaye, Human Rights in International and
Australian Law (2000).
Acts Interpretation Act 1901 (Cth) s 15AB. See also Lim v Minister for Immigration (1992) 176 CLR 1,
38.
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [30].
5
6
7
8
5. International Framework
83
International law and terrorism
United Nations response to the threat of terrorism
5.5 Since the terrorist attacks in New York and Washington DC on 11 September
2001, there has been an increasing focus on the threat of terrorism in international law
and international relations. The UN Security Council has called on all UN member
states to take anti-terrorism measures, some of which may be relevant to sedition.
5.6 Security Council Resolution 1456 states that all UN Members ‗must take urgent
action to prevent and suppress all active and passive support of terrorism‘.9 On
14 September 2005, the Security Council issued Resolution 1624:
Condemning in the strongest terms all acts of terrorism irrespective of their
motivation, whenever and by whomsoever committed, as one of the most serious
threats to peace and security, and reaffirming the primary responsibility of the
Security Council for the maintenance of international peace and security under the
Charter of the United Nations,
Condemning also in the strongest terms the incitement of terrorist acts and
repudiating attempts at the justification or glorification (apologie) of terrorist acts that
may incite further terrorist acts,
Deeply concerned that incitement of terrorist acts motivated by extremism and
intolerance poses a serious and growing danger to the enjoyment of human rights,
threatens the social and economic development of all States, undermines global
stability and prosperity, and must be addressed urgently and proactively by the United
Nations and all States, and emphasizing the need to take all necessary and appropriate
measures in accordance with international law at the national and international level
to protect the right to life.10
5.7
The Security Council called upon all States to
adopt such measures as may be necessary and appropriate and in accordance with
their obligations under international law to:
(a) Prohibit by law incitement to commit a terrorist act or acts;
(b) Prevent such conduct;
(c) Deny safe haven to any persons with respect to whom there is credible and
relevant information giving serious reasons for considering that they have been
guilty of such conduct.11
9
10
11
United Nations Security Council, Resolution 1456, UN SC, 4688th mtg, UN Doc S/Res/1456 (2003), [1].
United Nations Security Council, Resolution 1624, UN SC, 5261st mtg, UN Doc S/Res/1624 (2005).
Ibid, [1].
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Review of Sedition Laws
5.8 Decisions of the UN Security Council are binding on Australia as a member
state of the UN.12 Therefore, one possible effect of these resolutions may be to provide
constitutional justification—if this is needed—for the enactment of legislation dealing
with sedition. In other words, in the unlikely event that the Commonwealth Parliament
is not otherwise empowered to enact certain of the sedition provisions, the
Commonwealth could rely on the ‗external affairs‘ power in s 51(xxix) of the
Australian Constitution to the extent that those laws implement Australia‘s obligations
under international law.13
5.9 However, these developments do not give Parliament carte blanche to legislate
in any way it sees fit in responding to the threat of terrorism. Neither Resolution 1456
nor Resolution 1624, in its terms, provides justification for breaching existing
international norms.14 Resolution 1456 provides:
States must ensure that any measure taken to combat terrorism comply with all their
obligations under international law, and should adopt such measures in accordance
with international law, in particular international human rights, refugee, and
humanitarian law … 15
5.10 The Security Council likewise makes clear that any measures taken by states in
furtherance of Resolution 1624 must be ‗in accordance with their obligations under
international law‘. The Resolution also explicitly notes ‗the right of freedom of
expression‘ in art 19 of the Universal Declaration of Human Rights 1948 and art 19 of
the ICCPR, and states that ‗any restrictions thereon shall only be such as are provided
by law and are necessary on the grounds set out in paragraph 3 of Article 19 of the
ICCPR‘.16
5.11 Similarly, the UN General Assembly and the UN Commission on Human Rights
(UNCHR) have passed a number of resolutions stating that anti-terrorism measures
must not violate human rights.17 For instance, the UNCHR has urged states
to fulfil their obligations under the Charter of the United Nations in strict conformity
with international law, including human rights standards and obligations and
12
13
14
15
16
17
See Charter of the United Nations, 26 June 1945, [1945] ATS 1, (entered into force generally on
1 November 1945) art 25. For a discussion of the nature and effect of Security Council Resolutions, see
B Simma, The Charter of the United Nations: A Commentary (2nd ed, 2002), Vol 1, 453–460.
Given that the earlier statutory offence of sedition was found to be within the Commonwealth‘s
legislative power (see R v Sharkey (1949) 79 CLR 121), it is unlikely that the amended sedition offences
would be found to be unconstitutional.
This is also consistent with international law more generally. See L Lasry and K Eastman, Memorandum
of advice to Australian Capital Territory Chief Solicitor, (undated), citing United Nations SecretaryGeneral, Protecting Human Rights and Fundamental Freedoms while Countering Terrorism, UN GA,
60th session, UN Doc A/60/374 (2005); Ireland v United Kingdom (1978) 2 EHRR 25.
United Nations Security Council, Resolution 1456, UN SC, 4688th mtg, UN Doc S/Res/1456 (2003), [6].
United Nations Security Council, Resolution 1624, UN SC, 5261st mtg, UN Doc S/Res/1624 (2005).
See, eg, United Nations General Assembly, Resolution 58/174, UNGA, 77th plenary mtg, UN Doc
A/Res/58/174 (2004); United Nations Commission on Human Rights, Resolution 2003/37, 58th mtg, UN
Doc Res/2003/37 (2003); United Nations Commission on Human Rights, Resolution 2003/68, 62nd mtg,
UN Doc Res/2003/68 (2003).
5. International Framework
85
international humanitarian law, to prevent, combat and eliminate terrorism in all its
forms and manifestations, wherever, whenever and by whomever committed, and
calls upon States to strengthen, where appropriate, their legislation to combat
terrorism in all its forms and manifestations … 18
Balancing anti-terrorism measures with human rights
5.12 The ALRC recognises the importance of balancing the need for measures to
reduce the risk of acts of terrorism with the need to protect human rights in accordance
with Australia‘s obligations at international law. This is highlighted in the material
discussed above, and by participants in this Inquiry. For instance, a non-government
organisation, ARTICLE 19, stated in its submission that:
Enacting legislation in order to protect national security requires a careful balancing
act between legitimate security measures and maintaining international obligations for
the protection of human rights.19
5.13 The balancing process is also an accepted part of Australian law. In Alister v The
Queen, Brennan J described the balance as follows:
It is of the essence of a free society that a balance is struck between the security that is
desirable to protect society as a whole and the safeguards that are necessary to ensure
individual liberty. But in the long run the safety of a democracy rests upon the
common commitment of its citizens to the safeguarding of each man‘s liberty, and the
balance must tilt that way…20
5.14 This balance is reflected in the approach the ALRC has taken to reform of
sedition laws in this Inquiry, and particularly in the proposals that affect the right to
freedom of expression.
Article 20 of the ICCPR: incitement
5.15 In its submission to the Senate Legal and Constitutional Legislation Committee
inquiry on the provisions of the Anti-Terrorism Bill (No 2) 2005 (the 2005 Senate
Committee inquiry), the Australian Government Attorney-General‘s Department
(AGD) asserted that some of the sedition provisions—and especially the new offence
in s 80.2(5) of the Criminal Code—fall within the ambit of art 20 of the ICCPR.21
Article 20 states:
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law.
18
19
20
21
United Nations Commission on Human Rights, Resolution 2003/37, 58th mtg, UN Doc Res/2003/37
(2003) [5].
ARTICLE 19, Submission SED 14, 10 April 2006.
Alister v The Queen (1984) 154 CLR 404, 456.
Australian Government Attorney-General‘s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005.
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Review of Sedition Laws
5.16 The AGD stated that s 80.2(5) is ‗in part implementation of Article 20 of the
ICCPR which requires State parties to prohibit advocacy that incites violence,
discrimination or hostility‘.22 The 1991 Review of Commonwealth Criminal Law (the
Gibbs Committee) noted that art 20 of the ICCPR requires the Commonwealth to
prohibit ‗any advocacy of national, racial or religious hatred that constitutes incitement
to discrimination, hostility or violence‘ and the offence it proposed was framed to
reflect this.23 Section 80.2(5) is substantially similar to the offence proposed by the
Gibbs Committee.
5.17 In its submission to the 2005 Senate Committee inquiry, Australian Lawyers for
Human Rights (ALHR) accepted that if ‗the Government‘s purpose is to limit speech
or conduct capable of inciting violence‘, this would be ‗legitimate‘ and ‗consistent with
Australia‘s obligations under Article 20(2) of the ICCPR‘.24 However, it implied that
only the ‗urging‘ offence in s 80.2(5) can be justified by reference to art 20 of the
ICCPR. The other ‗new sedition powers do not achieve that aim in a way which has the
minimal effect on human rights particularly freedom of speech‘.25
5.18 Dr Ben Saul has made a different criticism of s 80.2(5), arguing that it does not
go far enough in implementing art 20(2) of the ICCPR. He has observed that s 80.2(5)
only operates to protect ‗groups‘, thereby excluding ‗incitements aimed to provoke
individuals, or groups not mentioned in the legislation‘. Moreover, the requirement that
the conduct must ‗threaten the peace, order and good government of the
Commonwealth‘ (s 80.2(5)(b)) might not cover ‗sporadic or isolated incitements to
violence‘ and is not supported by the Gibbs Committee recommendation or by
international law.26
Article 4 of the ICCPR: derogation
5.19 The issue of ‗derogation‘ from human rights obligations arose in testimony
before and submissions to the 2005 Senate Committee inquiry.27 International law
gives states a limited capacity of derogation. This means that, in certain emergency
situations, a state may suspend its obligation to give full protection to certain rights
recognised by the ICCPR. The purpose of derogation has been explained as follows:
22
23
24
25
26
27
Ibid.
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991), [32.17]–[32.18].
Australian Lawyers for Human Rights, Submission 139 to Senate Inquiry into Anti-Terrorism Bill (No 2)
2005, 11 November 2005. See also Gilbert & Tobin Centre of Public Law, Submission 80 to Senate
Inquiry into Anti-Terrorism Bill (No 2) 2005, 10 November 2005.
Australian Lawyers for Human Rights, Submission 139 to Senate Inquiry into Anti-Terrorism Bill (No 2)
2005, 11 November 2005.
B Saul, ‗Speaking of Terror: Criminalising Incitement to Violence‘ (2005) 28 University of New South
Wales Law Journal 868, 877.
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [2.26]–[2.31].
5. International Framework
87
In a society subject to the rule of law, a state of emergency proclaimed under existing
law enables the government to resort to measures of an exceptional and temporary
nature in order to protect the essential fabric of that society.28
5.20 The power to derogate is subject to several qualifications and exceptions, and
international law requires a state to follow an established procedure (set out in art 4) if
it wishes to derogate from its obligations under the ICCPR.29
5.21 In Australia, the AGD‘s submission to the 2005 Senate Committee inquiry
expressly disclaimed any need or intention for the Government to rely on the
derogation provisions in art 4 to justify any restrictions contained in the Anti-Terrorism
Bill (No 2) 2005.30 Nor have the pre-conditions to the application of art 4 been
undertaken: no public emergency within art 4(1) has been officially proclaimed, nor
has Australia given notice to the UN under art 4(3). Rather, the AGD submitted that:
A number of rights under the International Covenant on Civil and Political Rights
may be restricted on the basis of national security. The Government is satisfied that,
to the extent that any rights are restricted by the Bill, their restriction is justified on
the basis of national security and, accordingly, is permitted under the ICCPR. …
The Government has not derogated from its ICCPR obligations. It is not necessary for
there to exist an ‗emergency which threatens the life of the nation‘ in order to justify
the restriction of certain ICCPR rights on the basis of national security. The United
Nations Human Rights Committee has stated that: ‗Derogation from some Covenant
obligations in emergency situations is clearly distinct from restrictions or limitations
allowed even in normal times under several provisions of the Covenant‘.31
International human rights law: article 19 of the ICCPR
5.22 International human rights law articulates fundamental obligations with which
state parties must conform. Concern has been expressed that certain aspects of the
Australian sedition provisions may be incompatible with Australia‘s international
human rights obligations.
Explanation of article 19 of the ICCPR
5.23 Concern has been expressed that the new sedition offences might be inconsistent
with art 19 of the ICCPR. Article 19 states:
1. Everyone shall have the right to hold opinions without interference.
28
29
30
31
N Jayawickrama, The Judicial Application of Human Rights Law (2002), 202.
See C Michaelsen, ‗International Human Rights on Trial—The United Kingdom‘s and Australia‘s Legal
Response to 9/11‘ (2003) 25 Sydney Law Review 275, 288–292.
Australian Government Attorney-General‘s Department, Submission 290B to Senate Inquiry into AntiTerrorism Bill (No 3) 2005, 24 November 2005.
Ibid.
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Review of Sedition Laws
2. Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions,
but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of
public health or morals.
5.24 Under art 19, a restriction on a person‘s right to express himself or herself freely
is permissible only if that restriction: (a) is ‗provided by law‘; and (b) satisfies the test
of necessity in art 19(3).
5.25 The test of necessity is crucial. In the case of sedition, the restrictions on the
right to freedom of expression must be necessary ‗for the protection of national
security or of public order … or of public health or morals‘ within the meaning of
art 19(3)(b).
5.26 The UN Human Rights Committee (UNHRC) considered art 19(3) and stated:
Paragraph 3 expressly stresses that the exercise of the right to freedom of expression
carries with it special duties and responsibilities and for this reason certain restrictions
on the right are permitted which may relate either to the interests of other persons or
to those of the community as a whole. However, when a State party imposes certain
restrictions on the exercise of freedom of expression, these may not put in jeopardy
the right itself. Paragraph 3 lays down conditions and it is only subject to these
conditions that restrictions may be imposed … 32
5.27 The question whether the sedition provisions satisfy the test of necessity in
art 19(3)(b) determines whether they are inconsistent with the right of freedom of
expression as recognised at international law. There seems to be general agreement that
this is the appropriate question—both by those supporting and by those opposing the
current sedition provisions in Australia.33 The Human Rights and Equal Opportunity
Commission (HREOC), in its submission to the 2005 Senate Committee inquiry,
framed the question as follows:
32
33
United Nations Human Rights Committee, General Comment 10: Article 19, 19th session, UN Doc
HRI\GEN\1\Rev1 (1983), [4].
Australian Government Attorney-General‘s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005; Australian Lawyers for Human Rights, Submission 139
to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 11 November 2005; Gilbert & Tobin Centre of
Public Law, Submission 80 to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 10 November 2005;
Castan Centre for Human Rights Law, Submission 114 to Senate Inquiry into Anti-Terrorism Bill (No 2)
2005, 11 November 2005; Australian Capital Territory Human Rights Office, Letter of Advice to Chief
Minister and Attorney-General of the Australian Capital Territory, 19 October 2005; L Lasry and
K Eastman, Memorandum of advice to Australian Capital Territory Chief Solicitor, (undated).
5. International Framework
89
The sedition provisions will … only constitute a permissible restriction on freedom of
expression to the extent that they can be said to be necessary for the purposes of
protecting public order or national security. The word ‗necessary‘ imports the
principle of proportionality, which requires that any restriction must be proportionate
to the legitimate ends sought to be achieved … [T]he restriction must represent the
least restrictive means of achieving the relevant purpose. This is to ensure that the
restriction does not jeopardise the right itself.34
Question of compatibility
5.28 Of the participants in the 2005 Senate Committee inquiry who commented on
this issue, only the AGD expressed the view that all of the sedition provisions satisfy
this test.35 Many participants who commented on this issue expressed concern, often in
strong terms, that the new sedition offences might be inconsistent with art 19.36 IP 30
contains a summary of the views of those who argued to the 2005 Senate Committee
inquiry that the sedition provisions (as they appeared in Schedule 7 of the AntiTerrorism Bill (No 2) 2005 (Cth) at the time of that inquiry) were inconsistent with
art 19.37
5.29 The Senate Committee did not itself express an opinion on this question in its
report but, in recommending that Schedule 7 of the Bill be removed in its entirety, the
Committee acknowledged concerns about the related issue of the ‗potential impact of
the sedition provisions on freedom of speech in Australia‘.38
5.30 Given these concerns, IP 30 asked: ‗Are ss 80.2 and 80.3 of the Criminal Code
necessary for the protection of national security or public order within the meaning of
art 19(3)?‘39
34
35
36
37
38
39
Human Rights and Equal Opportunity Commission, Submission 158 to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 11 November 2005.
Australian Government Attorney-General‘s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005; Australian Government Attorney-General‘s Department,
Submission 290B to Senate Inquiry into Anti-Terrorism Bill (No 3) 2005, 24 November 2005.
Human Rights and Equal Opportunity Commission, Submission 158 to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 11 November 2005; Australian Lawyers for Human Rights, Submission 139
to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 11 November 2005; Law Council of Australia,
Submission 140 to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 11 November 2005; Sydney
Centre for International and Global Law, Submission 188 to Senate Inquiry into Anti-Terrorism Bill (No
2) 2005, 17 November 2005; Castan Centre for Human Rights Law, Submission 114 to Senate Inquiry
into Anti-Terrorism Bill (No 2) 2005, 11 November 2005; Australian Capital Territory Human Rights
Office, Letter of Advice to Chief Minister and Attorney-General of the Australian Capital Territory,
19 October 2005.
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), [5.35]–[5.39].
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [5.169].
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), Question 22.
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Review of Sedition Laws
Submissions and consultations in the ALRC Inquiry
5.31 As with the response to the 2005 Senate Committee inquiry, the vast majority of
stakeholders who commented on this issue in this Inquiry expressed concern that the
sedition provisions are inconsistent with art 19.40 Only the AGD disagreed, simply
stating that ‗the Government is satisfied that sections 80.2 and 80.3 of the Criminal
Code are consistent with its obligations under international law‘.41
5.32 A number of submissions simply stated that the provisions—either in part or in
their entirety—fail the test of necessity.42 Others offered a more detailed critique. As
summarised below, this criticism falls into three main categories: that there is an
insufficient link between the offence provisions in s 80.2 and violence; that the
offences are insufficiently clear; and that the existing offence provisions are sufficient.
No link with violence
5.33 In their submissions, the ALHR, the Federation of Community Legal Centres
and the New South Wales Young Lawyers Human Rights Committee argued that the
problem lies in the fact that the offences do not require a direct connection between the
offending conduct and actual terrorist activity or actual violence.43
5.34 The ALHR, Dr Saul and the non-governmental organisation, ARTICLE 19,
submitted that further guidance can be gleaned from the Johannesburg Principles on
National Security, Freedom of Expression and Access to Information (the
Johannesburg Principles).44 The Johannesburg Principles, like other international
instruments, can be relevant in statutory construction.45 In particular, Principle 6 states
that ‗subject to Principles 15 and 16‘ (neither of which is relevant here):
40
41
42
43
44
45
ARTICLE 19, Submission SED 14, 10 April 2006; J Goldring, Submission SED 21, 5 April 2006; Pax
Christi, Submission SED 16, 9 April 2006; Centre for Media and Communications Law, Submission SED
32, 12 April 2006; New South Wales Young Lawyers Human Rights Committee, Submission SED 38,
10 April 2006; Fitzroy Legal Service Inc, Submission SED 40, 10 April 2006; Chief Minister (ACT),
Submission SED 44, 13 April 2006; Australian Lawyers for Human Rights, Submission SED 47, 13 April
2006; Combined Community Legal Centres Group (NSW) Inc, Submission SED 50, 13 April 2006;
Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006; Public Interest
Advocacy Centre, Submission SED 57, 18 April 2006.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
Centre for Media and Communications Law, Submission SED 32, 12 April 2006; Australian Muslim
Civil Rights Advocacy Network, Submission SED 54, 17 April 2006.
Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006; New South Wales
Young Lawyers Human Rights Committee, Submission SED 38, 10 April 2006; Victoria Legal Aid,
Submission SED 43, 13 April 2006; Australian Lawyers for Human Rights, Submission SED 47, 13 April
2006.
Australian Lawyers for Human Rights, Submission SED 47, 13 April 2006; B Saul, Submission SED 52,
14 April 2006; ARTICLE 19, Submission SED 14, 10 April 2006, citing the Johannesburg Principles on
National Security, Freedom of Expression and Access to Information (1995) <http://www.article19.org/
pdfs/standards/joburgprinciples.pdf> at 20 April 2006. The Johannesburg Principles were adopted on
1 October 1995 by a group of experts in international law, national security, and human rights.
Acts Interpretation Act 1901 (Cth) s 15AB(1) (which addresses situations in which a statutory provision
is ‗ambiguous‘, ‗obscure‘ or would give rise to ‗a result that is manifestly absurd or … unreasonable‘);
Mabo and Others v Queensland (No. 2) (1992) 175 CLR 1, [42] (Brennan J, covering the relevance of
5. International Framework
91
Expression may be punished as a threat to national security only if a government can
demonstrate that:
(a) the expression is intended to incite imminent violence;
(b) it is likely to incite such violence; and
(c) there is a direct and immediate connection between the expression and the
likelihood or occurrence of such violence.
5.35 The ALHR submitted that the offences in s 80.2 fail the test of necessity, as
coloured by Principle 6, in that s 80.2 contains ‗no requirement that the prosecution
prove that the ―urging‖ was likely to incite violence‘ that is ‗imminent‘, and there is no
‗requirement for proof of a ―direct and immediate connection between the expression
and the likelihood or occurrence of such violence‖‘.46 ARTICLE 19 made a similar
argument.47 Instead, the s 80.2 offences ‗apply to expression which, viewed
objectively, presents no threat whatsoever to the Australian population‘. The ALHR
submitted that the offences should be redrafted so as to accord with the requirements in
the Johannesburg Principles.48
5.36 The ALHR was particularly concerned about s 80.2(7) and (8). It argued that
these provisions fall foul of art 19 of the ICCPR because they are worded so broadly
that conduct such as sending ‗stationery supplies‘ or ‗―urging‖ others to engage in
verbal support of an organisation or country‘ may conceivably fall within the ambit of
the provisions. Moreover, the provisions fall outside the art 19(3) exception because
they do not require proof of ‗any direct or indirect connection with violence whether
generally or specific‘.49
Lack of clarity
5.37 ARTICLE 19 expressed concern about the vagueness of the sedition offences. It
submitted that the statement in art 19(3) that any lawful restriction on freedom of
expression must be ‗provided by law‘ requires ‗substantially more than simply
enacting a legislative provision‘. Instead, it imports two critical requirements:
In particular, the legislative provision must also meet certain standards of clarity and
precision, to enable citizen to foresee the consequences of their conduct on the basis
of the law. This also entails not permitting excessive discretion by public officials in
determining whether the provision has been breached.50
46
47
48
49
50
international law more generally); D Williams, ‗Recognising Universal Rights in Australia‘ (2001) 24
University of New South Wales Law Journal 771, 773.
Australian Lawyers for Human Rights, Submission SED 47, 13 April 2006.
ARTICLE 19, Submission SED 14, 10 April 2006.
Australian Lawyers for Human Rights, Submission SED 47, 13 April 2006.
Ibid.
ARTICLE 19, Submission SED 14, 10 April 2006.
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Review of Sedition Laws
5.38 ARTICLE 19 submitted that the term ‗assist‘ (in s 80.2(7) and (8)) is
particularly problematic, in that it is so ‗vague‘ as ‗potentially [to] prohibit a wide raft
of legitimate speech‘.51
Existing powers sufficient
5.39 Victoria Legal Aid also submitted that the provisions fail the test of necessity
because ‗existing powers and offences are sufficient to deal with relevant conduct‘.52
The Chief Minister for the ACT made a similar point, stating that the ‗existing offences
… adequately address incitements to violence and to the extent that the sedition laws
go further they cannot be justified‘.53 He further stated that the sedition offences would
be incompatible with the Human Rights Act 2004 (ACT). As the relevant provisions of
that Act are materially the same as the ICCPR, his reasoning in this regard is also
relevant to the question whether the sedition provisions fail the test of necessity under
art 19 of the ICCPR.54
ALRC’s views
5.40 Any analysis of whether a particular statutory provision falls foul of art 19 of the
ICCPR requires a balancing of competing interests. Even if a statutory provision is
prima facie inconsistent with art 19(1) and (2), it remains necessary to check this
preliminary judgment against the considerations required by art 19(3). However, this is
not the only balancing exercise that needs to be undertaken. It is also necessary to take
account of the following principles:
•
the ICCPR should not be interpreted in such a way as to elevate certain rights so
as to permit the ‗destruction‘ of any of the other rights and freedoms in the
ICCPR;55
•
any restriction on freedom of expression must not jeopardise the right itself;56
and
•
the ‗exceptions [in art 19(3) of the ICCPR] are to be construed strictly and
narrowly‘.57
5.41 The ALRC‘s concerns about the compatibility of the sedition provisions with
art 19 of the ICCPR may be divided into two categories. The first category relates to
51
52
53
54
55
56
57
Ibid.
Victoria Legal Aid, Submission SED 43, 13 April 2006.
Chief Minister (ACT), Submission SED 44, 13 April 2006.
See Ch 7.
International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into
force generally on 23 March 1976) art 5(1).
United Nations Human Rights Committee, General Comment 10: Article 19, 19th session, UN Doc
HRI\GEN\1\Rev1 (1983), [4].
Coleman v Power (2004) 220 CLR 1, 93.
5. International Framework
93
the offences in s 80.2(1), (3) and (5); and the second category relates to the remaining
offences in s 80.2(7) and (8).
The offences in section 80.2(1), (3) and (5)
5.42 The ALRC is of the view that the wording of the offences in s 80.2(1), (3) and
(5) contributes to a lack of clarity on the issue of intention, in that these offences may
be interpreted to apply to conduct where the defendant does not in fact intend force or
violence to occur. This lack of clarity causes friction with the requirement in art 19(3)
that any restriction on freedom of expression be ‗provided by law‘. In Sunday Times v
United Kingdom, the expression ‗provided by law‘ was considered in the context of
art 10(2) of the European Convention on Human Rights 1950, which is the equivalent
of art 19(3) of the ICCPR.58 The European Court of Human Rights stated:
In the Court‘s opinion, the following are two of the requirements that flow from the
expression ‗prescribed by law‘. First, the law must be adequately accessible: the
citizen must be able to have an indication that is adequate in the circumstances of the
legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‗law‘
unless it is formulated with sufficient precision to enable the citizen to regulate his
conduct: he must be able—if need be with appropriate advice—to foresee, to a degree
that is reasonable in the circumstances, the consequences which a given action may
entail.59
5.43 The ALRC has addressed this concern in Proposals 8–1, 8–3 and 9–2. These
proposals, if adopted, would have the effect of amending the offences in s 80.2(1), (3)
and (5) to clarify that the proscribed ‗urging‘ must be intentional. This would have the
benefit of removing the risk that a broader interpretation may be adopted.60
The offences in section 80.2(7) and (8)
5.44 The ALRC is concerned that the use of the term ‗assist‘ in s 80.2(7) and (8) may
result in the offences being interpreted so broadly as to encompass non-violent
criticism of the Australian Government and others. Such an interpretation would run a
significant risk of falling foul of art 19 of the ICCPR. As stated earlier, the restrictions
on freedom of expression permitted by art 19(3) are strict and narrow. The equivalent
jurisprudence relating to art 10 of the European Convention on Human Rights 1950
emphasises that any restriction on freedom of expression must be proportionate to the
legitimate objective that parliament is seeking to achieve. An anti-terrorism measure
must not, for instance, jeopardise the jurisdiction‘s fundamental democratic
principles.61 Similarly, in the Australian context, it has been stated that in ‗reconciling
58
59
60
61
Sunday Times v United Kingdom (1979) 2 EHRR 245. See also ARTICLE 19, Submission SED 14, 10
April 2006.
Sunday Times v United Kingdom (1979) 2 EHRR 245, 271.
For further explanation of these proposals, see accompanying text in Chs 8 and 9.
Sunday Times v United Kingdom (1979) 2 EHRR 245; Handyside v United Kingdom (1976) 1 EHRR 737.
See also the analysis of the jurisprudence on the European Convention on Human Rights 1950 in Ch 6.
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Review of Sedition Laws
the interests of national security and the freedom of the individual‘ it is necessary to
recognise ‗freedom of legitimate political dissent‘ as one of the ‗essential requirements
of democracy‘.62
5.45 This is particularly so if the impugned expression were found to constitute
political speech. Kirby J has stated that while prohibition of incitement to crime or
violence falls within an exception to art 19(2) of the ICCPR, ‗expression characterised
as political expression is clearly protected by art 19 of the ICCPR‘.63
5.46 This concern is one of the factors contributing to Proposals 8–8 and 8–9. In
particular, the adoption of Proposal 8–8 would mean the repeal of s 80.2(7) and (8).
5.47 Many of the arguments raised in the critique of s 80.2(7) and (8) may also be
made in respect of the treason offences in s 80.1(e) and (f). Consequently, the
amendment suggested to the offence of treason in Proposal 8–9 would have the effect
of clarifying that only material ‗assistance‘ is intended to be captured by these offences
(as amended). This would go some way to alleviating concerns that the offences may
be used to prosecute legitimate expression of views that are not themselves incitements
to commit violence. Moreover, the addition of this element also responds to the
concern expressed by a number of the participants in this Inquiry—and fortified by
Principle 6 of the Johannesburg Principles—that these offences may be used in
circumstances where there is no genuine threat of force or violence.
62
63
H Lee, P Hanks and V Morabito, In the Name of National Security: The Legal Dimensions (1995), 15.
Coleman v Power (2004) 220 CLR 1, 92–93.
6. Sedition Laws in Other Countries
Contents
Introduction
Europe
European Convention on Terrorism
European Convention on Human Rights
United Kingdom
Common law sedition offences
The encouragement or glorification of terrorism offence
United States of America
Background
Current sedition offence
The Smith Act
Hong Kong
Canada
Other countries
95
96
96
97
99
99
100
105
105
106
107
108
110
110
Introduction
6.1 An important principle of comparative law is that useful lessons can be drawn
from studying how other jurisdictions approach common problems.1 This chapter
examines sedition laws in a number of selected countries, focusing on how other
jurisdictions seek to reconcile the need to proscribe seditious conduct with the
requirements of international law.2
6.2 Submissions to the Senate Legal and Constitutional Legislation Committee
inquiry into the provisions of the Anti-Terrorism Bill (No 2) 2005 (Cth) (the 2005
Senate Committee inquiry) expressed concern that Australia was out-of-step with other
jurisdictions in re-invigorating its sedition provisions.3 However, the AttorneyGeneral‘s Department (AGD) has stated that it is necessary to focus on the substance
1
2
3
M Glendon, W Gordon and C Osakwe, Comparative Legal Traditions (2nd ed, 1994), 10.
K Zweigert and H Kötz, An Introduction to Comparative Law (3rd ed, 1998), 34–35.
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [5.32]–[5.42]. See also C Connolly, ‗Five Key Facts on Sedition‘ (2005)
(November/December 2005) Human Rights Defender (Special Issue) 20, 20. Connolly states that Canada,
Ireland, Kenya, New Zealand, South Africa, Taiwan and the United States have repealed or are in the
process of repealing sedition legislation.
96
Review of Sedition Laws
of offences in other jurisdictions, rather than mere nomenclature, to determine whether
they are ‗sedition‘ offences.
While some have commented on a trend in some other countries away from ‗sedition‘
offences, this appears to be an observation in relation to the naming of such offences,
rather than an observation that the substance of such offences are being removed from
the Statute books.4
Europe
European Convention on Terrorism
6.3 Two European treaties are particularly relevant to the law of sedition. The first
is the Council of Europe‘s Convention on the Prevention of Terrorism (the European
Convention on Terrorism), adopted in 2005.5 Article 5 of this Convention requires
State parties to establish an offence of ‗public provocation to commit a terrorist
offence‘,6 which is defined as
the distribution, or otherwise making available, of a message to the public, with the
intent to incite the commission of a terrorist offence, where such conduct, whether or
not directly advocating terrorist offences, causes a danger that one or more such
offences may be committed.7
6.4 Article 5(2) provides that public provocation to commit a terrorist offence is
only an offence when committed ‗unlawfully and intentionally‘. Currently, there are
31 signatories to this Convention.
6.5 The Explanatory Report on this Convention provides examples of conduct that
may amount to the indirect incitement of terrorism so as to fall within the ambit of
art 5. These include ‗the dissemination of messages praising the perpetrator of an
attack, the denigration of victims, calls for funding for terrorist organisations or other
similar behaviour‘8 and ‗presenting a terrorist offence as necessary and justified‘.9
6.6 Dr Ben Saul has commented that the fact that art 5 requires a specific intent to
incite the commission of a terrorist offence and a danger that a terrorist offence may be
committed means that ‗merely justifying or praising terrorism, without more, is not
criminalised‘.10 In addition, Dr Saul has noted that the drafters of this Convention only
4
5
6
7
8
9
10
Australian Government Attorney-General‘s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005, 22.
Council of Europe Convention on the Prevention of Terrorism, 16 May 2005, CETS 196, (entered into
force generally on 16 May 2005).
Ibid art 5(2).
Ibid art 5(1).
Committee of Ministers of the Council of Europe, Explanatory Report on Council of Europe Convention on
the Prevention of Terrorism, adopted at 925th Meeting (2005), [95].
Ibid, [98].
B Saul, ‗Speaking of Terror: Criminalising Incitement to Violence‘ (2005) 28 University of New South
Wales Law Journal 868, 870.
6. Sedition Laws in Other Countries
97
agreed to criminalise provocation because European human rights remedies were
available to protect free expression from undue influence.11
European Convention on Human Rights
6.7 The second relevant treaty is the Council of Europe‘s Convention for the
Protection of Human Rights and Fundamental Freedoms 1950 (commonly referred to
as the European Convention on Human Rights or ECHR).12 Australia is not a party to
this Convention. However, art 10 is substantially similar to art 19 of the International
Covenant on Civil and Political Rights 1966 (ICCPR),13 to which Australia is a party.
Thus, the way in which European jurisdictions have approached sedition in light of
art 10 of the ECHR is instructive in the Australian context.
6.8
Article 10 of the ECHR states:
1. Everyone has the right to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This article shall not prevent States from
requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation or the
rights of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.
6.9 In Europe, sedition (along with the crimes of treason and espionage) is viewed
as a political crime. This means that the crime is ‗directed at the security and structure
of the state or the regime in official power‘.14 Thus, to constitute the offence of sedition
there must be a nexus between the defendant‘s conduct and the intention or effect of
jeopardising the security or integrity of the state. For this reason, sedition is best
characterised as a public order offence.
6.10 There has not been a direct challenge to the legitimacy of domestic sedition
legislation under the ECHR either in the European Court of Human Rights or in the
11
12
13
14
Ibid, 869–870.
Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213
UNTS 222, (entered into force generally on 3 September 1953).
International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into
force generally on 23 March 1976). See also the discussion of art 19 of the ICCPR in Ch 7.
P Lansing and J Bailey, ‗The Farmbelt Fuehrer: Consequences of Transnational Communication of
Political and Racist Speech‘ (1997) 76 Nebraska Law Review 653, 667–668.
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Review of Sedition Laws
European Commission of Human Rights.15 However, the case of Piermont v France
raised indirectly the issue of the interaction between domestic sedition provisions and
the freedom of expression guarantees in art 10 of the ECHR.16 The approach of the
European Commission of Human Rights in this case indicates that a domestic sedition
offence will not infringe art 10 if it makes sedition a public order offence and ensures
that only people threatening public order are prosecuted.17
6.11 Although there are no European cases directly on point, the principles derived
from other cases dealing with substantively similar issues provide some assistance in
analysing the interaction between art 10 of the ECHR (and, by implication, art 19 of
the ICCPR) and sedition provisions. On the whole, the national security and public
safety exceptions to the operation of art 10(1) of the ECHR have been interpreted
narrowly. However, the context is critical: where the provision in question limits
expression of a political nature, that provision is more likely to fall foul of art 10 than
other forms of expression.18
6.12 A number of decisions of the European Court of Human Rights have been
particularly protective of political speech.19 For example, Vereinigung Demokratischer
Soldaten Osterreichs and Gubi v Austria involved the refusal by the Austrian military
to authorise the distribution of a publication, aimed at Austrian soldiers, which often
included items critical of military life.20 The authorities claimed that the publication
was prejudicial to national security. However, the European Court of Human Rights
held that the publication did not prejudice national security and thus Austria was
unable to avail itself of the exception in art 10(2) of the ECHR.21
6.13 In contrast to the protection afforded to political expression, domestic legislation
proscribing racial hatred is much less likely to fall foul of art 10 of the ECHR.
Professor David Feldman has noted that the ‗weakest protection of all is accorded [by
art 10 of the ECHR] to racist expression and the promulgation of racial hatred‘.22
15
16
17
18
19
20
21
22
E Barendt, Freedom of Speech (revised ed, 1996), 158. Professor Barendt states generally that the
position of the European Commission of Human Rights, as expressed in Arrowsmith v United Kingdom
(1981) 3 EHRR 218, ‗strongly suggest[s] that such laws [as sedition] would be upheld as necessary
restrictions to protect national security and public safety, or to prevent disorder and crime‘.
Piermont v France (1993) 15 EHRR 76. The issue was raised indirectly because the applicant (the
defendant at first instance) did not argue that the sedition provision was incompatible with art 10 of the
ECHR, but rather that her impugned statements were ‗not in any way seditious and could not by
themselves constitute a serious threat to public order‘.
Ibid, 76.
D Feldman, Civil Liberties and Human Rights in England and Wales (2nd ed, 2002), 754.
See, eg, Lingens v Austria (1986) 8 EHRR 407; Vereinigung Demokratischer Soldaten Osterreichs and
Gubi v Austria (1995) 20 EHRR 56; Vogt v Germany (1995) 21 EHRR 205 (criticism of candidates for
elective office); Open Door Counselling and Dublin Well Woman Centre v Ireland (1992) 15 EHRR 244
(publication of information in Ireland about abortion services available in foreign jurisdictions).
Vereinigung Demokratischer Soldaten Osterreichs and Gubi v Austria (1995) 20 EHRR 56.
This provision is materially equivalent to art 19(3) of the ICCPR. For further discussion, see Ch 7.
D Feldman, Civil Liberties and Human Rights in England and Wales (2nd ed, 2002), 760. See also
E Barendt, Freedom of Speech (2nd ed, 2005), 171–172.
6. Sedition Laws in Other Countries
99
6.14 On the whole, states have been able to use art 10(2) of the ECHR to criminalise
the expression of racist views and hate speech, so long as the tests of legality, necessity
and proportionality are satisfied.23 For example, it is an offence in a number of
European countries to publish material denying that the Holocaust took place.24 The
European Court of Human Rights has indicated that legislation that prohibits a person
from denying the Holocaust will not contravene art 10 of the ECHR if it satisfies the
test of proportionality.25
United Kingdom
Common law sedition offences
6.15 The United Kingdom does not have a statutory offence of sedition. However, as
discussed in Chapter 3, it has several common law sedition offences such as the
offence of uttering seditious words.
6.16 It has been argued that the common law sedition offences require an incitement
to cause violence or disorder.26 This is said to give them ‗a public-order aspect‘, which
probably makes them compatible with art 10 of the ECHR.27 However, a public order
offence that detracts from freedom of expression must be ‗strictly necessary‘ to avoid
contravening art 10 of the ECHR.28
6.17 In 1977 the Law Commission of England and Wales concluded that there was
no need for an offence of sedition in the criminal code because conduct that would fall
within its ambit would be caught by offences of incitement or conspiracy to commit the
relevant offence.29 Further, the Law Commission stated that:
23
24
25
26
27
28
29
See Jersild v Denmark (1994) 19 EHRR 1.
See, eg, the relevant German legislation: Penal Code s 130(3) which must be read in conjunction with
Basic Law art 1. See also France‘s ‗Loi Gayssot‘, which makes it an offence to contest the existence of
certain crimes against humanity on the basis of which Nazi leaders were tried and convicted by the
International Military Tribunal at Nuremberg. The Loi Gayssot is discussed in Human Rights and Equal
Opportunity Commission, Human Rights Brief No 4: Lawful Limits on Fundamental Freedoms (2006)
<http://www.hreoc.gov.au/Human_RightS/briefs/brief_4.html#hr4.30> at 14 March 2006.
A good summary of the relevant case law can be found in A Marshall Williams and J Cooper, ‗Hate
Speech, Holocaust Denial and International Human Rights Law‘ (1999) 6 European Human Rights Law
Review 593, 603–609.
Law Commission of England and Wales, Working Paper No 72 Second Programme, Item XVIII
Codification of the Criminal Law—Treason, Sedition and Allied Offences (1977), [70]; J Boasberg,
‗Seditious Libel v Incitement to Mutiny: Britain Teaches Hand and Holmes a Lesson‘ (1990) 10 Oxford
Journal of Legal Studies 106, 107; H Fenwick, Civil Liberties (1994), 184.
D Feldman, Civil Liberties and Human Rights in England and Wales (2nd ed, 2002), 898.
See, eg, Percy v DPP [2002] Crim LR 835, 835.
Law Commission of England and Wales, Working Paper No 72 Second Programme, Item XVIII
Codification of the Criminal Law—Treason, Sedition and Allied Offences (1977), [77]–[78]. A similar
view was expressed in L Leigh, ‗Law Reform and the Law of Treason and Sedition‘ (1977) (Sum) Public
Law 128, 147.
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Review of Sedition Laws
it is better in principle to rely on these ordinary statutory and common law offences
than to have resort to an offence which has the implication that the conduct in
question is ‗political‘.30
6.18 There have been relatively few prosecutions of sedition offences in the United
Kingdom during the 20th century—fewer even than in Australia.31 It has been argued
that sedition offences have been ‗superseded by public-order legislation, including the
statutory crime of inciting racial hatred‘.32
6.19 The most recent sedition case in the United Kingdom was R v Chief
Metropolitan Stipendiary Magistrate; ex parte Choudhury.33 In this case the applicant
applied for summonses against the author and publisher of the book, The Satanic
Verses, for the common law offence of seditious libel. The applicant argued that by
publishing and distributing the book the defendants caused widespread discontent and
disaffection among Her Majesty‘s subjects, provoking acts of violence particularly
between Muslim and non-Muslim people. The Divisional Court dismissed the
application for judicial review of the magistrate‘s refusal to issue the summonses.
Watkins LJ, on behalf of the Court, held:
Proof of an intention to promote feelings of ill will and hostility between different
classes of subjects does not alone establish a seditious intention. Not only must there
be proof of an incitement to violence in this connection, but it must be violence or
resistance or defiance for the purpose of disturbing … some person or body holding
office or discharging some public function of the state.34
The encouragement or glorification of terrorism offence
6.20 As noted above, there is no statutory offence of sedition in the United Kingdom.
However, in April 2006 legislation came into force making it an offence to encourage
or glorify terrorism.35 In Issues Paper 30 (IP 30) the ALRC asked whether there was a
need for a similar offence in Australia.36
6.21 Section 1 of the Terrorism Act 2006 (UK) states:
1 Encouragement of terrorism
(1) This section applies to a statement that is likely to be understood by some or all of
the members of the public to whom it is published as a direct or indirect
encouragement or other inducement to them to the commission, preparation or
instigation of acts of terrorism or Convention offences.
30
31
32
33
34
35
36
Law Commission of England and Wales, Working Paper No 72 Second Programme, Item XVIII
Codification of the Criminal Law—Treason, Sedition and Allied Offences (1977), [78].
L Maher, ‗The Use and Abuse of Sedition‘ (1992) 14 Sydney Law Review 287, 294. See also E Barendt,
Freedom of Speech (revised ed, 1996), 155.
D Feldman, Civil Liberties and Human Rights in England and Wales (2nd ed, 2002), 899.
R v Chief Metropolitan Stipendiary Magistrate; ex parte Choudhury [1991] 1 QB 429.
Ibid, 453.
Terrorism Act 2006 (UK).
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), Question 9.
6. Sedition Laws in Other Countries
(2) A person commits an offence if—
(a) he publishes a statement to which this section applies or causes another to
publish such a statement; and
(b) at the time he publishes it or causes it to be published, he—
(i) intends members of the public to be directly or indirectly encouraged
or otherwise induced by the statement to commit, prepare or instigate
acts of terrorism or Convention offences; or
(ii) is reckless as to whether members of the public will be directly or
indirectly encouraged or otherwise induced by the statement to
commit, prepare or instigate such acts or offences.
(3) For the purposes of this section, the statements that are likely to be understood by
members of the public as indirectly encouraging the commission or preparation of
acts of terrorism or Convention offences include every statement which—
(a) glorifies the commission or preparation (whether in the past, in the future
or generally) of such acts or offences; and
(b) is a statement from which those members of the public could reasonably
be expected to infer that what is being glorified is being glorified as conduct
that should be emulated by them in existing circumstances.
(4) For the purposes of this section the questions how a statement is likely to be
understood and what members of the public could reasonably be expected to infer
from it must be determined having regard both—
(a) to the contents of the statement as a whole; and
(b) to the circumstances and manner of its publication.
(5) It is irrelevant for the purposes of subsections (1) to (3)—
(a) whether anything mentioned in those subsections relates to the
commission, preparation or instigation of one or more particular acts of
terrorism or Convention offences, of acts of terrorism or Convention offences
of a particular description or of acts of terrorism or Convention offences
generally; and,
(b) whether any person is in fact encouraged or induced by the statement to
commit, prepare or instigate any such act or offence.
(6) In proceedings for an offence under this section against a person in whose case it
is not proved that he intended the statement directly or indirectly to encourage or
otherwise induce the commission, preparation or instigation of acts of terrorism or
Convention offences, it is a defence for him to show—
(a) that the statement neither expressed his views nor had his endorsement
(whether by virtue of section 3 or otherwise); and
(b) that it was clear, in all the circumstances of the statement‘s publication,
that it did not express his views and (apart from the possibility of his having
been given and failed to comply with a notice under subsection (3) of that
section) did not have his endorsement.
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(7) A person guilty of an offence under this section shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding
7 years or to a fine, or to both;
(b) on summary conviction in England and Wales, to imprisonment for a term
not exceeding 12 months or to a fine not exceeding the statutory maximum, or
to both; …
6.22 The concept of glorification is defined to include ‗any form of praise or
celebration, and cognate expressions are to be construed accordingly‘.37 Section 2 of
the Act creates a separate offence of ‗dissemination of terrorist publications‘, which
relies also on the concept of glorification.38
6.23 The creation of an offence of encouraging or glorifying terrorism was
controversial.39 An offence of condoning or glorifying terrorism was initially included
in the Racial and Religious Hatred Bill 2005 (UK). However, it was heavily criticised40
and abandoned prior to enactment.41 A similar offence, referring to encouragement or
glorification of terrorism, was then introduced in a narrower form in the Bill that
became the Terrorism Act 2006 (UK).42 This Bill was initially rejected by the House of
Lords on 28 February 2006 (by a majority of 160 to 156) and was the subject of
vigorous debate in both Houses of Parliament. The European Convention on Terrorism
provided some impetus for encouragement of terrorism offences.43 However, s 1(5)(a)
of the Terrorism Act 2006 makes it clear that it is not limited by the scope of this
Convention.
6.24 The primary criticism of this new offence is that it impacts too heavily on
freedom of expression. During parliamentary debates about the offence, Ralf
Dahrendorf, a member of the House of Lords, stated that ‗rants should be rejected with
argument, not with police and prisons‘.44
6.25 The United Kingdom Parliament‘s Joint Committee on Human Rights expressed
concern that the new offence of ‗encouragement‘ of terrorism was not sufficiently
certain to satisfy art 10 of the ECHR, which requires interferences with freedom of
37
38
39
40
41
42
43
44
Terrorism Act 2006 (UK) s 20(2).
There are also other references to ‗glorification‘. See Ibid ss 3 and 21.
See, eg, Amnesty International, UK: Human Rights: A Broken Promise, 23 February 2006 (2006)
<http://web.amnesty.org/library/Index/ENGEUR450042006?open&of=ENG-GBR> at 1 March 2006.
See B Saul, ‗Speaking of Terror: Criminalising Incitement to Violence‘ (2005) 28 University of New
South Wales Law Journal 868, 870–871; E Barendt, ‗Threats to Freedom of Speech in the United
Kingdom‘ (2005) 28 University of New South Wales Law Journal 895.
See Racial and Religious Hatred Act 2006 (UK).
B Saul, ‗Speaking of Terror: Criminalising Incitement to Violence‘ (2005) 28 University of New South
Wales Law Journal 868, 871.
Ibid, 871.
R Dahrendof, Free Speech on Trial (2005) Project Syndicate <http://www.project-syndicate.org/
commentary/dahrendorf45> at 27 February 2006.
6. Sedition Laws in Other Countries
103
expression to be ‗prescribed by law‘. The Committee expressed concern about the
following factors:
(i) the vagueness of the glorification requirement, (ii) the breadth of the definition of
‗terrorism‘ and (iii) the lack of any requirement of intent to incite terrorism or
likelihood of such offences being caused as ingredients of the offence.45
6.26 Professor Eric Barendt has stated that an offence of glorification of terrorism
would make the government ‗the judge of acceptable history‘ and could blur the line
‗between extremist political speech … and criminal speech‘.46
Submissions and consultations
6.27 In the current Inquiry, those stakeholders who commented on this issue
unanimously opposed the introduction of a new offence of the encouragement or
glorification of terrorism in Australia. The AGD informed the ALRC that it did not
presently have any intention of enacting such an offence.47 It submitted that:
A number of alternatives to the words ‗advocates‘ and ‗praise‘ were considered
during development of the [Anti-Terrorism Act (No 2) 2005 (Cth)], including ‗glorify‘
or ‗condone‘. It was considered that these terms were less precise than ‗praise‘ and
could generate difficulties of proof, particularly in the context of a criminal
prosecution, where it must be proved beyond a reasonable doubt. It is likely that,
given its ordinary meaning, ‗glorify‘ would be read down in a way that would be
more restrictive than ‗praise‘, while condone could include implications and may be
too broad.48
6.28 ARTICLE 19 submitted that criminalising the glorification of terrorism violates
the Johannesburg Principles on National Security, Freedom of Expression and Access
to Information because ‗there is an insufficient connection between the speech and a
likelihood of imminent violence‘.49 In addition, it stated:
The UK offences of ‗glorification‘ and ‗encouragement‘ are both vaguely worded and
broad in scope, failing to meet the ‗provided by law‘ test. … The concept of
‗glorification‘ also removes the requirement of mens rea, a fundamental component of
a society governed by the rule of law.50
6.29 Dr Saul submitted that introduction of a glorification offence would be
particularly undesirable ‗in the absence of any entrenched protection of human rights in
45
46
47
48
49
50
House of Lords and House of Commons Joint Committee on Human Rights, Counter-Terrorism Policy
and Human Rights: Terrorism Bill and Related Matters, Third Report of Session 2005–06 (2005), 3.
E Barendt, ‗Threats to Freedom of Speech in the United Kingdom‘ (2005) 28 University of New South
Wales Law Journal 895, 896–897.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006; Australian
Government Attorney-General‘s Department, Consultation, Canberra, 26 April 2006.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
ARTICLE 19, Submission SED 14, 10 April 2006. The Johannesburg Principles are discussed in Ch 7.
Ibid.
104
Review of Sedition Laws
Australia‘.51 The Australian Muslim Civil Rights Advocacy Network also opposed the
introduction of such an offence and noted that concerns had been expressed in the
United Kingdom that such an offence would disproportionately target Muslims.52
ALRC’s views
6.30 The ALRC agrees that it is undesirable to introduce an offence of ‗glorification‘
or ‗encouragement‘ of terrorism. The term ‗glorification‘ is vague and is not used
elsewhere in the Criminal Code. However, the Criminal Code does enable an
organisation to be listed as a terrorist organisation if it ‗directly praises‘ the doing of a
terrorist act where there is a risk that such praise might lead a person to engage in a
terrorist act.53
6.31 Although the word ‗praise‘ is similar to the word ‗glorify‘, it is used in a
provision designed to assist the Attorney-General to determine whether or not an
organisation is a terrorist organisation.54 It is not used in a provision that imposes
criminal liability on an individual or organisation for praising terrorist acts.
Accordingly, there is no precedent in Australia for the offence of glorifying terrorism
and the Criminal Code provisions that refer to the praising of terrorism would provide
limited assistance in determining the meaning of any offence of glorification of
terrorism.
6.32 Further, an offence of glorification of terrorism could represent an unwarranted
incursion into freedom of expression and the constitutionally protected freedom of
political discourse.55 In the United Kingdom, courts must interpret statutory provisions
so that they are consistent with the human rights protections in the ECHR.56 Thus, a
crucial safeguard against an overly broad interpretation of an offence of glorification of
terrorism would be absent if such an offence were enacted in Australia.
Proposal 6–1
There is no need to introduce into federal law an offence of
‗encouragement or glorification of terrorism‘, along the lines of that in s 1 of the
Terrorism Act 2006 (UK).
51
52
53
54
55
56
B Saul, Submission SED 52, 14 April 2006.
Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006.
Criminal Code (Cth) s 102.1(1A)(c).
See especially Ibid s 102.1(2).
See Ch 7.
Human Rights Act 1998 (UK) s 3.
6. Sedition Laws in Other Countries
105
United States of America
Background
6.33 The Sedition Act of 1798 was the first piece of legislation proscribing sedition in
the United States.57 Since the passage of this Act, the offence of sedition has been
removed from the statute books from time to time and has fallen into disuse at other
times.58 Sedition prosecutions were common in the United States during World War I
and immediately following World War II.59 However, ‗modern-day sedition trials are
almost unheard of‘ in the United States.60
6.34 The critical issue in determining the validity of United States sedition laws has
been whether or not they are compatible with the First Amendment to the United States
Constitution.61 Professor Chafee has stated that a common defect in sedition laws, and
one that is arguably not limited to the United States, is that their operation is
unpredictable:
It is an outstanding feature of every sedition act that the way it is enforced differs
from the way it looks in print as much as a gypsy moth differs from the worm from
which it has grown.62
6.35 In Keyishian v Board of Regents the United States Supreme Court held that an
offence of uttering seditious words was so broad that the ‗the possible scope of
―seditious‖ utterances or acts has virtually no limit‘. Accordingly, the provision fell
foul of the First Amendment protection of free speech.63 Brennan J held that it cast ‗a
pall of orthodoxy‘64 enabling selective prosecution of people who articulated views
critical of the government. This has been described in the United States literature as
‗viewpoint discrimination‘.65
6.36 The most recent Supreme Court case dealing with the constitutionality of
sedition law is Brandenburg v Ohio in 1969.66 In this case, the Court refined and
57
58
59
60
61
62
63
64
65
66
H Keehn, ‗Terroristic Religious Speech: Giving the Devil the Benefit of the First Amendment Free
Exercise and Free Speech Clauses‘ (1998) 28 Seton Hall Law Review 1230, 1240.
For a detailed account of the history of United States sedition legislation, see Ibid, 1241–1245; Z Chafee,
Free Speech in the United States (2nd ed, 1954); J Rudanko, The Forging of Freedom of Speech: Essays on
Argumentation in Congressional Debates on the Bill of Rights and on the Sedition Act (2003).
J Cohan, ‗Seditious Conspiracy, the Smith Act, and Prosecution for Religious Speech Advocating the
Violent Overthrow of the Government‘ (2003) 17 St John’s Journal of Legal Commentary 199, 202.
Ibid, 202.
The First Amendment states: ‗Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of grievances.‘
Brandenburg v Ohio 395 US 444 (1969); Z Chafee, Free Speech in the United States (2nd ed, 1954), 459.
Keyishian v Board of Regents 385 US 589 (1967), 598–599 (Brennan J).
Ibid, 603.
See I Hare, ‗Method and Objectivity in Free Speech Adjudication: Lessons from America‘ (2005) 54
International and Comparative Law Quarterly 49, 57.
Brandenburg v Ohio 395 US 444 (1969).
106
Review of Sedition Laws
clarified earlier tests of constitutionality. It held that three elements were required
before a law criminalising the advocacy of illegal conduct could be valid: there must be
express advocacy of law violation; the advocacy must call for immediate law violation;
and the law violation must be likely to occur.67 More generally, the United States
Supreme Court has tended to invalidate criminal laws that detract from freedom of
expression—and especially political expression—unless they criminalise conduct that
is ‗inherently likely to cause violent reaction‘.68
Current sedition offence
6.37 There is a federal offence of ‗seditious conspiracy‘ in the United States Code
§ 2384, which provides:
Seditious conspiracy
If two or more persons in any State or Territory, or in any place subject to the
jurisdiction of the United States, conspire to overthrow, put down, or to destroy by
force the Government of the United States, or to levy war against them, or to oppose
by force the authority thereof, or by force to prevent, hinder, or delay the execution of
any law of the United States, or by force to seize, take, or possess any property of the
United States contrary to the authority thereof, they shall each be fined under this title
or imprisoned not more than twenty years, or both.69
6.38 There are three principal elements to the offence. First, there must be a
‗conspiracy‘ involving two or more persons, occurring within United States territory or
jurisdiction. Secondly, the conspiracy must oppose the United States government or
threaten its laws or property. Thirdly, the use of force must be part of the conspiracy
plot. The term ‗seditious‘ is only referred to in the title and not the text of § 2384. This
may be ‗because the word ―seditious‖ in and of itself does not sufficiently convey what
conduct it forbids‘.70
6.39 In United States v Rahman a radical Islamic cleric, Sheik Omar Abdel Rahman,
and a number of other defendants were convicted of seditious conspiracy pursuant to
§ 2384 of the United States Code. Rahman was said to have incited members of his
group to undertake subversive activities, such as plotting to blow up the headquarters
of the United Nations and other buildings in New York City, during his sermons. In his
sermons he told his followers to, among other things, ‗do jihad with the sword, with the
cannon, with the grenades, with the missile … against God‘s enemies‘.71 Further, he
67
68
69
70
71
B Schwartz, ‗Holmes versus Hand: Clear and Present Danger or Advocacy of Unlawful Action‘ (1994)
Supreme Court Review 209, 240; H Keehn, ‗Terroristic Religious Speech: Giving the Devil the Benefit of the
First Amendment Free Exercise and Free Speech Clauses‘ (1998) 28 Seton Hall Law Review 1230,
1245.
See, eg, Cohen v California 403 US 15 (1971), 20.
Crimes and Criminal Procedure Code of 1948 (1994) 18 USC § 2384.
J Cohan, ‗Seditious Conspiracy, the Smith Act, and Prosecution for Religious Speech Advocating the
Violent Overthrow of the Government‘ (2003) 17 St John’s Journal of Legal Commentary 199, 208.
United States v Rahman 189 F 3d 88 (1999), 104.
6. Sedition Laws in Other Countries
107
stated that ‗being called terrorists was fine, so long as they were terrorizing the
enemies of Islam, the foremost of which was the United States and its allies‘.72
6.40 Rahman‘s sentence and the constitutionality of § 2384 were affirmed by the
Court of Appeals for the Second Circuit.73 The Court of Appeals held that the fact that
his speech or conduct was ‗religious‘ did not immunise him from prosecution under
generally applicable criminal statutes.74
6.41 One commentator has predicted that ‗prosecutions of seditious conspiracy are
more likely to occur in a climate of society‘s heightened apprehension about terrorist
plots against the nation‘.75
The Smith Act
6.42 The Alien Registration Act of 1940, or ‗Smith Act‘,76 has been described as the
‗companion statute‘ to the law on seditious conspiracy.77 While the Smith Act does not
use the term ‗sedition‘, it creates an offence of advocating the overthrow of
government. The relevant provision states:
Whoever knowingly or willfully advocates, abets, advises, or teaches the duty,
necessity, desirability, or propriety of overthrowing or destroying the government of
the United States or the government of any State, Territory, District or Possession
thereof, or the government of any political subdivision therein, by force or violence,
or by the assassination of any officer of any such government; or
Whoever, with intent to cause the overthrow or destruction of any such government,
prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any
written or printed matter advocating, advising, or teaching the duty, necessity,
desirability, or propriety of overthrowing or destroying any government in the United
States by force or violence, or attempts to do so; or
Whoever organizes or helps or attempts to organize any society, group, or assembly
of persons who teach, advocate, or encourage the overthrow or destruction of any
such government by force or violence; or becomes or is a member of, or affiliates
with, any such society, group, or assembly of persons, knowing the purposes
thereof—
Shall be fined under this title or imprisoned not more than twenty years, or both, and
shall be ineligible for employment by the United States or any department or agency
thereof, for the five years next following his conviction.78
72
73
74
75
76
77
78
Ibid, 107.
Ibid.
Ibid, 117.
J Cohan, ‗Seditious Conspiracy, the Smith Act, and Prosecution for Religious Speech Advocating the
Violent Overthrow of the Government‘ (2003) 17 St John’s Journal of Legal Commentary 199, 203.
Named after Representative Howard W Smith of Virginia.
J Cohan, ‗Seditious Conspiracy, the Smith Act, and Prosecution for Religious Speech Advocating the
Violent Overthrow of the Government‘ (2003) 17 St John’s Journal of Legal Commentary 199, 230–231.
Crimes and Criminal Procedure Code of 1948 (1994) 18 USC § 2385.
108
Review of Sedition Laws
6.43 The relevant provisions of the Smith Act have been interpreted in a similar
manner to the seditious conspiracy provisions, such that they apply ‗only to concrete
violent action as distinguished from the teaching of abstract principles related to the
forcible overthrow of the government‘.79 Purely ‗academic discussion‘ is not enough to
support a prosecution.80 However, the Smith Act does not appear to require proof to the
same level of specificity as is required to prosecute under § 2384. Rather, it catches
‗the mere teaching or advocacy of the violent overthrow of the government‘.81 The
constitutionality of the Smith Act was affirmed by the United States Supreme Court in
1951.82 The Court later refined the meaning of advocacy to require that ‗those to whom
the advocacy is addressed must be urged to do something, now or in the future, rather
than merely to believe in something‘.83
Hong Kong
6.44 As part of the transitional arrangements that followed China‘s resumption of
sovereignty over Hong Kong on 30 June 1997, a statute entitled the Basic Law of the
Hong Kong Special Administrative Region of the People’s Republic of China 1997 (the
Basic Law) was enacted. Its effect was to retain the existing legal edifice for at least 50
years (art 5) subject to certain qualifications, including that Hong Kong‘s law must be
amended so as to conform to the Basic Law itself (art 8). Article 23 of the Basic Law
provides:
The Hong Kong Special Administrative Region shall enact laws on its own to prohibit
any act of treason, secession, sedition, subversion against the Central People‘s
Government, or theft of state secrets, to prohibit foreign political organizations or
bodies from conducting political activities in the Region, and to prohibit political
organizations or bodies of the Region from establishing ties with foreign political
organizations or bodies.
6.45 In September 2002, the Hong Kong government published its proposals to
implement art 23. On 25 February 2003, these proposals were included in the National
Security (Legislative Provisions) Bill. The reaction to this Bill was ‗deafening and
swift‘, with 500,000 people marching against the Bill on 1 July 200384—‗the largest
protest march ever held against the Hong Kong government‘.85 Ultimately, the Bill was
withdrawn from the Legislative Council.
79
80
81
82
83
84
85
J Cohan, ‗Seditious Conspiracy, the Smith Act, and Prosecution for Religious Speech Advocating the
Violent Overthrow of the Government‘ (2003) 17 St John’s Journal of Legal Commentary 199, 231.
Ibid, 235.
Ibid, 231.
Dennis v United States 341 US 494 (1951).
Yates v United States 354 US 298 (1957), 325.
R Wacks, ‗National Security and Fundamental Freedoms: Hong Kong‘s Article 23 under Scrutiny—A
Review‘ (2006) Public Law 180, 181. See also T Kellogg, ‗Legislating Rights: Basic Law Article 23,
National Security, and Human Rights in Hong Kong‘ (2004) 17 Columbia Journal of Asian Law 307,
308.
C Petersen, ‗Introduction‘ in F Hualing, C Petersen and S Young (eds), National Security and
Fundamental Freedoms: Hong Kong’s Article 23 under Scrutiny (2005) 1, 3.
6. Sedition Laws in Other Countries
109
6.46 Accordingly, Hong Kong retains colonial era offences of sedition, which
criminalise any seditious act, seditious words or dealings with a seditious publication.86
The term ‗seditious intention‘ is defined in s 9(1) as follows:
A seditious intention is an intention—
(a)
to bring into hatred or contempt or to excite disaffection against the person of
Her Majesty, or Her Heirs or Successors, or against the Government of Hong
Kong, or the government of any other part of Her Majesty‘s dominions or of
any territory under Her Majesty's protection as by law established;
(b)
to excite Her Majesty's subjects or inhabitants of Hong Kong to attempt to
procure the alteration, otherwise than by lawful means, of any other matter in
Hong Kong as by law established; or
(c)
to bring into hatred or contempt or to excite disaffection against the
administration of justice in Hong Kong; or
(d)
to raise discontent or disaffection amongst Her Majesty‘s subjects or inhabitants
of Hong Kong; or
(e)
to promote feelings of ill-will and enmity between different classes of the
population of Hong Kong; or
(f)
to incite persons to violence; or
(g)
to counsel disobedience to law or to any lawful order.
6.47 This offence was used by the colonial authority to suppress internal dissent.87 It
has been described as ‗archaic‘, out of step with ‗a narrower definition to comport with
the stability of most modern states‘,88 and ‗draconian‘.89 It is also said to have a
‗chilling effect on free speech‘.90 The offence was used in the 1960s, but rarely
thereafter.91
6.48 It has been observed that unlike most statutes dealing with sedition, the Hong
Kong law does not require proof of an intention to incite violence. Thus it presents a
relatively low bar to prosecution.92 The Bill that was proposed to implement art 23 of
86
87
88
89
90
91
92
Crimes Ordinance (HK) ss 10(1) and (2).
See F Hualing, ‗Past and Future Offences of Sedition in Hong Kong‘ in F Hualing, C Petersen and
S Young (eds), National Security and Fundamental Freedoms: Hong Kong’s Article 23 under Scrutiny
(2005) 217, 226–228.
T Kellogg, ‗Legislating Rights: Basic Law Article 23, National Security, and Human Rights in Hong
Kong‘ (2004) 17 Columbia Journal of Asian Law 307, 325.
Yan Mei Ning on behalf of the Hong Kong News Executives' Association, On Sedition, Police
Investigation Power and Misprision of Treason [Legal Opinion], 1 December 2001, [7].
Ibid, [7].
F Hualing, ‗Past and Future Offences of Sedition in Hong Kong‘ in F Hualing, C Petersen and S Young
(eds), National Security and Fundamental Freedoms: Hong Kong’s Article 23 under Scrutiny (2005) 217,
229.
T Kellogg, ‗Legislating Rights: Basic Law Article 23, National Security, and Human Rights in Hong
Kong‘ (2004) 17 Columbia Journal of Asian Law 307, 327; F Hualing, ‗Past and Future Offences of
Sedition in Hong Kong‘ in F Hualing, C Petersen and S Young (eds), National Security and Fundamental
Freedoms: Hong Kong’s Article 23 under Scrutiny (2005) 217, 248.
110
Review of Sedition Laws
the Basic Law did not incorporate a requirement of an intention to incite violence—a
factor contributing to the disquiet that led to its abandonment.93
Canada
6.49 In a 1986 working paper, the Law Reform Commission of Canada (LRCC)
described the offence of sedition as ‗an outdated and unprincipled law‘, asking ‗is it
not odd that our Criminal Code still contains the offence of sedition which has as its
very object the suppression of [freedom of political expression]?‘94
6.50 This is particularly problematic given that s 2(b) of the Canadian Charter of
Rights and Freedoms recognises the ‗fundamental … freedom of thought, belief,
opinion and expression, including freedom of the press and other media of
communication‘. The LRCC went on to note that the leading Canadian authority on
sedition, Boucher v The Queen,95 construed the relevant provisions narrowly. As a
result, the LRCC concluded:
Applying [the Supreme Court of Canada‘s] narrow definition, there no longer seems
to be a need for a separate offence of sedition, because the only conduct that would be
proscribed by it could just as well be dealt with as incitement … , conspiracy … ,
contempt of court, or hate propaganda … . Clearly, legislative revision is in order.96
6.51 Nevertheless, sedition remains a part of Canadian criminal law.97 However,
there does not appear to have been a prosecution for sedition in Canada since the
1950s. This may be due, at least in part, to the Supreme Court of Canada‘s finding that
the sedition provisions do not have any reach beyond those allied offences noted by the
LRCC.
Other countries
6.52 Prosecutions for sedition are relatively rare. Nevertheless, they still occur from
time to time in other countries. The following is a brief, representative overview of
some recent attempts to prosecute sedition in certain other countries. The account
below focuses on prosecutions for offences defined as sedition offences—as opposed
to other offences that may fall within the legal definition of sedition, such as incitement
to violence.
6.53 There have been very few recent reported cases of sedition in Europe or North
America (other than the United States case of Rahman discussed above). Rather, it
appears that sedition is now viewed as an outdated and inappropriate offence. For
93
94
95
96
97
T Kellogg, ‗Legislating Rights: Basic Law Article 23, National Security, and Human Rights in Hong
Kong‘ (2004) 17 Columbia Journal of Asian Law 307, 328.
Law Reform Commission of Canada, Crimes Against the State, Working Paper 49 (1986), 35–36.
Boucher v The King [1951] 2 DLR 369.
Law Reform Commission of Canada, Crimes Against the State, Working Paper 49 (1986), 36.
Criminal Code 1985 (Canada) ss 59–61.
6. Sedition Laws in Other Countries
111
example, on 3 May 2006, 78 people of German descent convicted of sedition during
World War I in the United States state of Montana were posthumously pardoned.98
6.54 In Asia, a number of countries possess sedition laws inherited from the United
Kingdom. In Malaysia in early 2006, a government minister with responsibility for
legal matters threatened to prosecute for sedition a number of non-Muslim authors of
articles written about Islam.99 Any such prosecution would be based on Malaysia‘s
Sedition Act 1948, in which the definition of sedition is based on the common law
definition of ‗seditious libel‘.
6.55 Article 139 of the Philippines Criminal Code contains an offence of sedition,
which is committed when a person rises ‗publicly and tumultuously in order to obtain
by force, intimidation, or by other means outside legal methods‘ certain political
objectives. There is a related offence of incitement to sedition (art 142) and this is
therefore more closely analogous to the Australian sedition offences that are the subject
of this Inquiry.100
6.56 These offences have been used recently against Filipino journalists during the
state of emergency declared by the Arroyo administration between 24 February and
3 March 2006. For example, Professor Randy David and Argee Guevarra were arrested
on 24 February 2006 for inciting sedition after leading a demonstration march on the
day that the state of emergency was declared. They were released on the same day and
the charges were dropped.101 However, the following day police raided the offices of
The Daily Tribune. The newspaper‘s editor and two columnists were charged under
art 142 of the Criminal Code with incitement to sedition. Those charges are currently
being challenged on the basis of a decision by the Philippines High Tribunal that the
presidential proclamation authorising the raid on The Daily Tribune was unlawful.102
6.57 Article 301 of the Turkish Penal Code was enacted on 1 June 2005. It
criminalises the public denigration of Turkishness, the Republic or the Grand National
Assembly of Turkey, the judicial institutions of Turkey, and Turkey‘s military or
security structures. It further provides that where the denigration of Turkishness is
committed by a Turkish citizen in another country the punishment shall be increased
98
99
100
101
102
For a detailed analysis of this decision and the Montana wartime sedition law, see J Robbins, ‗Pardons
Granted 88 Years After Crimes of Sedition‘, New York Times (online), 3 May 2006, <www.
nytimes.com>.
See report in ‗Jail Threatened Over Islam Insults‘, The Australian (online), 21 March 2006,
<www.theaustralian.news.com.au>.
Related offences include inciting rebellion or insurrection (art 138) and publishing false news that may
endanger public order, or cause damage to the interest or credit of the State (art 154).
H Bryant, L Macale and N Lee, ‗―No‖ to the Dark Days‘, Philippine Journalism Review Reports, March
2006, 10.
See G Mabutas, ‗Publisher Wants Charge Dismissed‘, Manila Bulletin Online (online), 10 May 2006,
<http://www.mb.com.ph/issues/2006/05/10/MTNN2006051063599.html>.
112
Review of Sedition Laws
by one third. However, ‗expressions of thought intended to criticize shall not constitute
a crime‘.103
6.58 It has been reported that at least 29 journalists have been charged under
art 301,104 along with authors, professors, publishers, activists and artists. Prominent
author Orhan Pamuk was charged after he said in an interview with a Swiss newspaper
that ‗30,000 Kurds and a million Armenians were murdered. Hardly anyone dares
mention it, so I do. And that‘s why I‘m hated.‘ The charges against Pamuk were
eventually dropped because the interview occurred before art 301 was enacted. Others
charged under art 301 include two members of the Turkish Human Rights Advisory
Board, for their role in the publication of a report on minority and cultural rights in
Turkey.105 However, in May 2006, a judge acquitted the defendants of the sedition
charges after a prosecutor said the two men had used their right to free speech in the
report.
103
104
105
Amnesty International, Turkey: Article 301: How the Law on ‘Denigrating Turkishness’ is an Insult to
Freedom of Expression (2006) <http://web.amnesty.org/library/Index/ENGEUR440032006?open&of
=ENG-TUR> at 24 April 2006.
R Mahoney, Nationalism and the Press —As Turkish Nationalists Resist European Tilt, Freedom of
Expression is a Victim (2006) Committee to Protect Journalists <http://www.cpj.org/Briefings/2006/
turkey_3-06/turkey_3-06.html> at 24 April 2006.
Amnesty International, Turkey: Article 301: How the Law on ‘Denigrating Turkishness’ is an Insult to
Freedom of Expression (2006) <http://web.amnesty.org/library/Index/ENGEUR440032006?open&of=
ENG-TUR> at 24 April 2006.
7. Sedition and Freedom of Expression
Contents
Introduction
Freedom of expression and the Constitution
ALRC‘s view
Sedition and domestic protection of human rights
ALRC‘s view
Risk of unfair or discriminatory application of sedition laws
Submissions and consultations
Suggestions for reform
ALRC‘s view
Absence of bills of rights in Australia
ALRC‘s view
Sedition and freedom of expression generally
Submissions and consultations
ALRC‘s view
Journalism and the arts
Journalists
The arts
Suggestions for reform
ALRC‘s view
113
115
116
120
121
121
122
124
125
126
128
128
129
131
132
132
134
136
136
Introduction
7.1 This chapter analyses the interaction between the sedition provisions and
freedom of expression in Australian domestic law. The chapter analyses the character
and extent of any chilling effect on freedom of expression caused by the sedition
provisions and discusses the interaction between the sedition provisions and other
domestic legislation that protects human rights.
7.2 Most comparable foreign jurisdictions incorporate a general right to freedom of
expression in a statutory or constitutional bill of rights.1 As discussed later in this
chapter, no Australian jurisdiction except the Australian Capital Territory (ACT)
1
The term ‗bill of rights‘ is used here as a shorthand expression to describe any legislative or constitutional
instrument that purports to list and offer legal protection to basic human rights.
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currently possesses a bill of rights—and so (except in the ACT) there are no formal,
legislative guarantees of protection for freedom of expression in Australia.
7.3 Freedom of expression is nevertheless given some limited forms of protection in
Australian law—particularly under the Australian Constitution, which is discussed
below. The common law, and some federal, state and territory legislation, also provide
limited protection to certain categories of expression.2 For instance, all Australian
jurisdictions are subject to at least one ‗Freedom of Information‘ regime, the objectives
of which include fostering public debate and discussion.3
7.4 Also relevant is the common law principle that the law permits everything
except that which is expressly forbidden.4 This means that, unless explicitly prohibited
by laws (such as those proscribing defamation, offensive behaviour, obscenity or
sedition), individuals are allowed to say what they want.
7.5 Strong concern has been voiced about the impact of the sedition provisions on
freedom of expression. This criticism falls within a number of broad categories:
•
The sedition provisions are, in whole or in part, inconsistent with the Australian
Constitution.
•
There is insufficient statutory protection of human rights at the federal level and,
as a result, there are inadequate safeguards to prevent an overly broad
interpretation of the offence provisions.
•
There is a risk that the sedition offences will be applied unfairly or in a
discriminatory manner against certain groups in the Australian community.
•
The sedition laws have the potential to restrict the expression of views that
ought to be permitted in a liberal democracy such as Australia. This criticism
may be linked to the more specific concern that the drafting of some or all of the
offences is open to differing constructions. The offences may be interpreted
broadly, with the consequence that they may infringe too much on freedom of
expression.
•
The sedition provisions provide inadequate protection to established media
organisations in carrying out their functions of news reporting and the
dissemination of bona fide comment on matters of public interest or importance.
2
3
See M Chesterman, Freedom of Speech in Australia: A Delicate Plant (2000), 7–13.
Freedom of Information Act 1982 (Cth); Freedom of Information Act 1989 (ACT); Freedom of
Information Act 1989 (NSW); Information Act 2002 (NT); Freedom of Information Act 1992 (Qld);
Freedom of Information Act 1991 (SA); Freedom of Information Act 1991 (Tas); Freedom of Information
Act 1982 (Vic); Freedom of Information Act 1992 (WA).
Clough v Leahy (1904) 2 CLR 139, 157; Malone v Metropolitan Police Commissioner [1979] Ch 344,
357.
4
7. Sedition and Freedom of Expression
•
115
The sedition provisions are likely to ‗chill‘ free artistic expression by forcing
artists and authors to engage in self-censorship or risk facing prosecution. A
related fear is that the scope of the sedition provisions is vague and, if
interpreted broadly, may cover satire and ridicule, which ought not to be
proscribed.
7.6 Some of these concerns are interrelated. All are addressed in greater detail in
this chapter, along with consideration of some proposed solutions.
Freedom of expression and the Constitution
7.7 The Australian Constitution gives express recognition to a limited number of
human rights, though none expressly mentions freedom of expression. It has been
argued that some provisions—especially s 116, which relates to religious freedom5—
have the potential to provide some direct protection to freedom of expression.6
However, the courts have not interpreted s 116 in this way.
7.8 Of greater constitutional significance is the protection given to political
expression. Notwithstanding the absence of explicit constitutional protection for free
speech, in a series of cases culminating in Lange v Australian Broadcasting
Corporation, the High Court has held that the Constitution must be read as impliedly
protecting a particular category of expression—namely, political discourse.7 The test
for constitutionality was said to involve two limbs:
First, does the law effectively burden freedom of communication about government or
political matters either in its terms, operation or effect? Second, if the law effectively
burdens that freedom, is the law reasonably appropriate and adapted to serve a
legitimate end the fulfilment of which is compatible with the maintenance of the
constitutionally prescribed system of representative and responsible government and
the procedure prescribed by s 128 for submitting a proposed amendment of the
Constitution to the informed decision of the people.8
7.9 As was pointed out in Coleman v Power, the Lange test should be applied such
that ‗if the first [question] is answered ―Yes‖, and the second ―No‖, the law is invalid‘.9
In other words, to the extent that a statutory provision under challenge fails to meet
these requirements, it will be invalid.
5
6
7
8
9
Australian Constitution s 116 states: ‗The Commonwealth shall not make any law for establishing any
religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no
religious test shall be required as a qualification for any office or public trust under the
Commonwealth.‘
The suggestion was made that s 80.2(5) of the Criminal Code (Cth) might be inconsistent with s 116 of the
Australian Constitution: Gilbert & Tobin Centre of Public Law, Submission 80 to Senate Inquiry into
Anti-Terrorism Bill (No 2) 2005, 10 November 2005.
See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
Ibid, 567.
Coleman v Power (2004) 220 CLR 1, 78.
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Review of Sedition Laws
7.10 Some stakeholders expressed concern in this Inquiry that the sedition provisions
may be unconstitutional. The joint submission of John Fairfax Holdings Ltd (Fairfax),
News Ltd and Australian Associated Press (AAP), with which the Australian
Broadcasting Corporation (ABC) agreed,10 argues that ‗there can be no question but
that the provisions burden such [political] discourse; the real question is whether they
are reasonably adapted to serve a legitimate end‘.11
7.11 The submission argues that the provisions are unconstitutional on the following
basis:
Given the burden which these offence provisions would appear to impose on
discussion in the media of matters necessary and desirable to the effective exercise of
their franchise by electors, as required by the Constitutional principle of responsible
and representative government, the relevant provisions of the Act appear to exceed
what is reasonably required, and not to be reasonably adapted, to serve the legitimate
end (anti-terrorism) which the Act seeks to achieve.12
7.12 Some other stakeholders express more muted concern about the constitutionality
of the sedition offences.13
ALRC’s view
7.13 In considering the scope of the constitutional protection of freedom of
expression, it is important to bear in mind two propositions. The first is that the
constitutional protection given to freedom of political communication is not absolute or
unqualified; it extends only to what is necessary for the effective operation of that
system of representative and responsible government provided for by the
Constitution.14 In the specific context of the sedition provisions, the limited nature of
the constitutional protection of freedom of expression was acknowledged in the Senate
Legal and Constitutional Legislation Committee inquiry into the Anti-Terrorism Bill
(No 2) 2005 (the 2005 Senate Committee inquiry).15
10
11
12
13
14
15
Australian Broadcasting Corporation, Submission SED 49, 20 April 2006.
John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006. See also Australian National University Academics, Consultation, Canberra, 27 April 2006;
Australian Broadcasting Corporation, Submission SED 49, 20 April 2006.
John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006, which was endorsed in Australian Broadcasting Corporation, Submission SED 49, 20 April 2006.
See, eg, ARTICLE 19, Submission SED 14, 10 April 2006.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 561; Langer v Commonwealth
(1996) 186 CLR 302; Coleman v Power (2004) 220 CLR 1, 77; M Chesterman, Freedom of Speech in
Australia: A Delicate Plant (2000), 25.
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [5.75].
7. Sedition and Freedom of Expression
117
7.14 The second proposition is that this implied constitutional right encompasses the
right (technically vested in people possessing the right to vote in Australian elections)
to engage in public criticism of the official conduct of elected representatives.16
7.15 For a legislative provision to be unconstitutional, it is necessary to show
something more than that it merely burdens a broad notion of freedom of political
communication. Rather it would be necessary to demonstrate that the provision
infringes the constitutional right to engage in public criticism of the government or
government action. The ALRC considers that the sedition provisions cannot reasonably
be construed in this way, whether viewed in their current form or in the amended form
proposed by the ALRC.
7.16 In the absence of Australian case law since the 1950s dealing with sedition, let
alone cases considering the ‗updated‘ sedition offences in s 80.2 of the Criminal Code
(Cth), it is difficult to assess with complete certainty the scope of operation of the
sedition provisions. It is necessary, therefore, to apply the normal processes of
statutory interpretation to the relevant offences.
The offences in section 80.2(1), (3) and (5)
7.17 The offences in s 80.2(1), (3) and (5) each purport to criminalise the urging of
conduct by ‗force or violence‘. This is quite different from the kind of criticism of
government that the cases on the constitutional protection for freedom of political
discourse, such as Lange, aim to protect. As McHugh J stated in Coleman v Power:
Regulating political statements for the purpose of preventing breaches of the peace by
those provoked by the statements is an end that is compatible with the system of
representative government established by the Constitution.17
7.18 The sedition offences appear to fit comfortably within McHugh J‘s statement.
However, should there be any ambiguity in this regard, a court could look to extrinsic
materials.18 In statements made after the enactment of the Anti-Terrorism Act (No 2)
2005 (Cth)—which would not strictly be relevant for the purposes of statutory
interpretation19—the Australian Government Attorney-General‘s Department (AGD)
16
17
18
19
Nationwide News v Wills (1992) 177 CLR 1, 75; Australian Capital Television v Commonwealth (1992)
177 CLR 106, 138–139; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 130; M
Chesterman, Freedom of Speech in Australia: A Delicate Plant (2000), 23.
Coleman v Power (2004) 220 CLR 1, 53.
Acts Interpretation Act 1901 (Cth) s 15AB, which provides a non-exhaustive list of extrinsic material to
which a court may have regard in construing legislation.
This is because a court is only permitted to have regard to such explanatory material as is produced prior
to the enactment of the statutory provisions that the court is construing: Ibid s 15AB(2).
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Review of Sedition Laws
and the Attorney-General of Australia have sought to make clear that it was not the
intention of the government to criminalise mere criticism of the government.20
7.19 There is also some evidence for this in material that would be relevant for the
purposes of s 15AB of the Acts Interpretation Act 1901 (Cth). For instance, the
Supplementary Explanatory Memorandum, in explaining the amendment made to the
(then draft) defence to be inserted in s 80.3 of the Criminal Code following the 2005
Senate Committee inquiry, stated that this change was designed to ‗reassure those who
publish reports or commentaries about matters of public interest‘ that they ‗are not
caught by the [sedition] provision, provided the publication is done in good faith‘.21 At
the 2005 Senate Committee inquiry, the AGD also suggested that the offence
provisions were designed in such a way as to ensure that ‗people who make comments
without seeking to incite violence or hatred will not be deprived of the freedom of
speech‘.22
7.20 The ALRC considers that the offences in s 80.2(1), (3) and (5) cannot properly
be construed in such a way as to capture mere criticism of government action.
Consequently, these provisions are unlikely to breach the constitutional protection for
freedom of political communication, as it has been articulated by the High Court.
However, even if the Crown advocated a contrary interpretation in a prosecution for
one or more of these offence provisions, the court would be obliged to ‗read down‘ the
provision in question so that it remains consistent with the Constitution.23
The offences in section 80.2(7) and (8)
7.21 The ALRC is also of the view that the offences in s 80.2(7) and (8) are unlikely
to infringe the Constitution.24 The threshold question (that is, the first limb of the
Lange test) is whether each offence purports to cover ‗communication about
government or political matters either in its terms, operation or effect‘. It is certainly
conceivable that, if a court took a broad view of the word ‗assist‘ in subsections (7) and
(8), some forms of assistance to an enemy of Australia or those engaged in armed
hostilities against Australia may also fall within the ambit of constitutionally protected
political discourse.
7.22 However, even if the first limb of Lange were satisfied, the more important
question is whether these provisions satisfy the second limb of the Lange test.
Certainly, these offences do not expressly state that the proscribed assistance must
relate to ‗force or violence‘.
20
21
22
23
24
Australian Government Attorney-General‘s Department, Consultation, Canberra, 26 April 2006;
P Ruddock, ‗Opening Address‘ (Paper presented at Security In Government Conference, Canberra,
9 May 2006), [78].
Supplementary Explanatory Memorandum, Anti-Terrorism Bill (No 2) 2005 (Cth).
Australian Government Attorney-General‘s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005, Attachment A.
See Acts Interpretation Act 1901 (Cth) s 15A.
The ALRC proposes, for other reasons, that s 80.2(7) and (8) be repealed. See Ch 8, Proposal 8–8.
7. Sedition and Freedom of Expression
119
7.23 The High Court decision in Coleman v Power is relevant here.25 That case dealt
with s 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld), which
made it an offence if a person, in a public place, ‗uses any threatening, abusive, or
insulting words to any person‘.26 Gummow and Hayne JJ addressed the United States
‗fighting words‘ cases—namely, the line of authority holding that the First Amendment
to the United States Constitution does not protect expression that has the purpose or
effect of inciting violence. They then said:
The Australian constitutional and legal context is different from that of the United
States. The United States decisions about so-called ‗fighting words‘ find no direct
application here.27
7.24 Gummow and Hayne JJ, with whom Kirby J agreed, assumed (but did not
decide) that s 7(1)(d) of the Queensland Act ‗may, in some cases, burden a
communication about government or political matters‘.28 They then considered
whether the provision, so construed, satisfied the second limb of the test in Lange.
They held that, by construing the term ‗insulting words‘ in s 7(1)(d) so as to apply only
to ‗words intended, or reasonably likely, to provoke unlawful physical retaliation‘, the
provision was ‗reasonably appropriate and adapted to serve the legitimate public end of
keeping public places free of violence‘.29
7.25 The ALRC considers that the burden on political expression caused by s 80.2(7)
and (8) of the Criminal Code is likely to arise only in a relatively small number of
situations, if at all. However, to the extent that it arises, the ALRC believes that these
provisions either would not fall foul of the second limb in the Lange test or would be
construed in such a way as to prevent prosecution in respect of non-violent urging that
is ‗disproportionate‘30 to serving a legitimate end in the Lange sense.
Conclusion on the question of constitutionality
7.26 The principal concern about the constitutionality of the offences in s 80.2 is the
risk that they may be used in circumstances where the impugned conduct consists of
‗political speech‘ that, in substance, neither incites violence nor directly threatens the
institutions of government in Australia or the Australian Defence Force. This risk is
most pronounced in relation to the offences in s 80.2(7) and (8). Putting to one side the
25
26
27
28
29
30
Coleman v Power (2004) 220 CLR 1.
This provision was amended by the Queensland Parliament in 2003 prior to the High Court‘s decision in
Coleman v Power.
Coleman v Power (2004) 220 CLR 1, 76.
Ibid, 78 (Gummow and Hayne JJ), 89 (Kirby J).
Ibid, 77–78 (Gummow and Hayne JJ), 98 (Kirby J).
This is the term preferred by Kirby J in Ibid, 90.
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Review of Sedition Laws
disincentives to prosecute an offence of this nature,31 such a situation is at least
theoretically conceivable.
7.27 It is possible to conceive of a person being prosecuted under s 80.2(7) or (8) for
providing political advice to a country at war with Australia. However, the approach of
the High Court in Coleman v Power demonstrates that, if an attempt were made to use
these provisions to prosecute what might be described as protected political speech by
a constitutionally impermissible means, a court would simply adopt a narrower
construction of the offence provision. The result would not be invalidity; rather it
would be a construction that makes clear that the scope of the provision is too narrow
to permit such a prosecution.32
7.28 The High Court might, at some later stage, expand the constitutional protection
to freedom of expression beyond the principles in Lange. However, the current state of
the law makes it unlikely that a constitutional challenge to the validity of the sedition
provisions would be successful. Consequently, the ALRC makes no proposal to amend
the sedition provisions specifically to avoid constitutional invalidity.
7.29 The ALRC does have other concerns about the framing, breadth and potential
application of s 80.2(7) and (8), and their overlap with the substantially similar
provisions in s 80.1(1)(e)–(f) of the Criminal Code concerning treason. In Chapter 8,
the ALRC proposes the repeal of s 80.2(7) and (8), and reform aimed at rationalising
and narrowing the related treason provisions.
Sedition and domestic protection of human rights
7.30 In Issues Paper 30 (IP 30), the ALRC asked whether any aspects of ss 80.2 to
80.6 of the Criminal Code were inconsistent with domestic legislation protecting
human rights.33
7.31 On the whole, responses to this question indicated no great concern about
inconsistency between the sedition provisions and domestic human rights legislation.34
The Human Rights and Equal Opportunity Commission (HREOC) noted that there
may be some inconsistency between these provisions and the Human Rights Act 2004
(ACT). However, the fact that the offences in s 80.2 are, in essence, public order
offences of general application means that there is no substantive inconsistency with
federal human rights legislation.35
31
32
33
34
35
See the discussion in Chs 2, 8 and 10 on the discretion of the Director of Public Prosecutions to refuse to
prosecute, and the likely interpretation of the offence and defence provisions.
See Coleman v Power (2004) 220 CLR 1, 53–56 (McHugh J), 78–79 (Gummow and Hayne JJ).
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), Question 23.
Human Rights and Equal Opportunity Commission, Consultation, Sydney, 31 March 2006; New South
Wales Young Lawyers Human Rights Committee, Submission SED 38, 10 April 2006.
Human Rights and Equal Opportunity Commission, Consultation, Sydney, 31 March 2006.
7. Sedition and Freedom of Expression
121
7.32 The AGD rejected any suggestion that the sedition provisions are inconsistent
with any domestic protections of human rights, stating that any inconsistency could
only arise if the sedition provisions ‗authorised behaviour that is currently unlawful‘
under anti-discrimination legislation. Moreover, the AGD stated:
The Government is satisfied that sections 80.2 to 80.6 of the Criminal Code are
consistent with domestic human rights legislation and there has been no rolling back
of any of Australia‘s domestic human rights legislation.36
ALRC’s view
7.33 Putting to one side the question whether the sedition provisions are compatible
with the International Covenant on Civil and Political Rights 1966 (ICCPR), which is
discussed in Chapter 5, the ALRC sees no substantive inconsistency between the
sedition provisions and domestic human rights legislation. This view applies with
reference to the sedition provisions in their current form, and as they would appear if
the amendments proposed by the ALRC were adopted.
Risk of unfair or discriminatory application of sedition laws
7.34 In IP 30, the ALRC noted that concerns have been raised that some of the new
offences may be applied disproportionately or unfairly to the disadvantage of particular
groups within the Australian community. IP 30 asked whether this was a problem and,
if so, what legal or administrative steps should be taken to address it.37
7.35 Australian law prohibits many forms of direct and indirect discrimination. At the
federal level, the most important Acts are the Racial Discrimination Act 1975 (Cth)
(RDA), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992
(Cth) and the Age Discrimination Act 2004 (Cth). There are also protections afforded
by other federal laws dealing with discrimination in particular circumstances,38 and by
state and territory anti-discrimination laws.39
7.36 Importantly for present purposes, s 9 of the RDA prohibits both direct and
indirect discrimination ‗based on race, colour, descent or national or ethnic origin‘.
Taking the example of racial discrimination, the difference between direct and indirect
discrimination is as follows. Direct discrimination occurs where the rights of a person,
X, are impaired because of conduct that distinguishes, excludes, restricts or prefers
36
37
38
39
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), Question 24.
See, eg, Human Rights and Equal Opportunity Commission Act 1986 (Cth); Workplace Relations Act
1996 (Cth) s 222.
See, especially, Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1991 (Qld); Equal
Opportunity Act 1984 (SA); Racial Vilification Act 1996 (SA); Anti-Discrimination Act 1998 (Tas);
Equal Opportunity Act 1995 (Vic); Racial and Religious Tolerance Act 2001 (Vic); Equal Opportunity
Act 1984 (WA); Discrimination Act 1991 (ACT); Anti-Discrimination Act 1992 (NT).
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another person on the basis of certain grounds, such as X‘s national origin.40 Indirect
discrimination occurs where X cannot comply with a particular requirement or
condition (which has the purpose or effect of impairing X‘s rights), but a higher
proportion of people that do not have X‘s national origin could comply, and the
condition is unreasonable in all the circumstances.41
Submissions and consultations
7.37 Submissions to the Inquiry demonstrate a concern that the sedition provisions, in
their application, may have an unfair or indirectly discriminatory impact on certain
groups within the Australian community, particularly those who are already
disadvantaged or marginalised.42 The AGD does not share this view, stating that the
offences do not ‗expressly or impliedly discriminate against any racial, ethnic or
religious groups‘ and that they ‗apply equally to any group or groups‘.43
7.38 Some of those critical of the provisions argue that this is an inevitable incident
of the legislative framework. For example, the Federation of Community Legal Centres
(Federation of CLCs) submits:
This potential for politicised and discriminatory prosecution is not simply an
unintended by-product of the sedition laws. In our view it is the very nature of the
laws, insofar as they are intended to prosecute political speech, that they be
prosecuted in a politicised manner.44
7.39 A similar point is made by the New South Wales Young Lawyers Human Rights
Committee, and others, who point to the fact that public order offences, and
particularly those directed ‗against publicly insulting or offensive speech‘, historically
have been disproportionately and unfairly enforced.45
7.40 A number of stakeholders assert that there has been disproportionate ‗targeting‘
of individuals of Muslim faith or those of Middle Eastern origin,46 and a rise in
40
41
42
43
44
45
46
Racial Discrimination Act 1975 (Cth) s 9(1).
Ibid s 9(1A).
Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006; New South Wales
Young Lawyers Human Rights Committee, Submission SED 38, 10 April 2006; E Nekvapil, Submission
SED 45, 13 April 2006; Arts Law Centre of Australia, Submission SED 46, 13 April 2006; Combined
Community Legal Centres Group (NSW) Inc, Submission SED 50, 13 April 2006; B Saul, Submission
SED 52, 14 April 2006; Australian Muslim Civil Rights Advocacy Network, Submission SED 54,
17 April 2006; Public Interest Advocacy Centre, Submission SED 57, 18 April 2006; G Zdenkowski,
Submission SED 64, 3 May 2006.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006.
New South Wales Young Lawyers Human Rights Committee, Submission SED 38, 10 April 2006. See
also E Nekvapil, Submission SED 45, 13 April 2006.
Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006; New South Wales
Young Lawyers Human Rights Committee, Submission SED 38, 10 April 2006; Fitzroy Legal Service
Inc, Submission SED 40, 10 April 2006; E Nekvapil, Submission SED 45, 13 April 2006; Combined
Community Legal Centres Group (NSW) Inc, Submission SED 50, 13 April 2006; Australian Muslim
Civil Rights Advocacy Network, Submission SED 54, 17 April 2006; Public Interest Advocacy Centre,
Submission SED 57, 18 April 2006.
7. Sedition and Freedom of Expression
123
Australia and other western countries of what has been termed ‗Islamophobia‘. The
Australian Muslim Civil Rights Advocacy Network (AMCRAN) describes this as a
form of ‗social exclusion‘.47 The Federation of CLCs submits:
The current climate of institutionalised ‗Islamophobia‘ and the widely held perception
of a link between Islam and terrorism creates a grave risk that Muslim individuals
may be disproportionately prosecuted with sedition offences (as it would seem
Communist Party members were in the past). Statements made by Muslims before a
Muslim audience may be more readily regarded as seditious than similar such
statements made by other community members. The statements of Muslim
community members may be perceived through the lens of the highly politicised
concept of ‗extremism‘ and as a result assessed as ‗terrorist‘ or seditious.48
7.41 The Public Interest Advocacy Centre (PIAC) states that the establishment of a
permanent police taskforce to work in Muslim communities in south-west Sydney has
caused greater scrutiny of this section of the broader community. PIAC submits that
this, coupled with the fact that s 80.2 only requires the Attorney-General to give
consent to the prosecution of a sedition offence (with no such consent requirement in
respect of arrest, detention or charge), ‗leads to a very real risk that action will be taken
against members of this community by police in reliance on the provisions even if
there is limited likelihood of a prosecution being approved by the Attorney-General‘.49
7.42 The Combined Community Legal Centres Group (NSW) Inc cites the
concluding observations of the Committee on the Elimination of Racial
Discrimination, as relevant to Australia:
The Committee notes with concern reports that prejudice against Arabs and Muslims
in Australia has increased and that the enforcement of counter-terrorism legislation
may have an indirect discriminatory effect against Arab and Muslim Australians.
The Committee … recommends that the State party increase its efforts to eliminate
such prejudice and ensure that enforcement of counter-terrorism legislation does not
disproportionately impact on specific ethnic groups and people of other national
origins.50
7.43 AMCRAN expresses its concern about the undesirable eventuality of ‗the
criminalisation of statements made by Muslims as ―incitement‖ where there may
otherwise be no evidence of violent acts which threaten the safety of the public‘.51
47
48
49
50
51
Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006.
Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006. See also E Nekvapil,
Submission SED 45, 13 April 2006; Australian Muslim Civil Rights Advocacy Network, Submission SED
54, 17 April 2006.
Public Interest Advocacy Centre, Submission SED 57, 18 April 2006.
Combined Community Legal Centres Group (NSW) Inc, Submission SED 50, 13 April 2006 citing
Committee on the Elimination of Racial Discrimination, Concluding Observations, UN Doc
CERD/C/AUS/CO/14 (2005), [13].
Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006.
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Suggestions for reform
7.44 Suggestions have been made to counteract the threat of unfair enforcement of
the sedition offences. These fall into two categories: education and external
monitoring.
7.45 In relation to the former, it is suggested in submissions that education programs
should be developed to inform the Muslim community of ‗what may be covered by the
legislation and what the legal rights of those affected are‘,52 and that law enforcement
authorities be given more cross-cultural training.53 Emrys Nekvapil submits that these
provisions are likely to hamper inter-community dialogue, stating that ‗creating selfcensorship around opinions in support of an enemy can only inhibit exactly that
dialogue which is required at all levels to bring about understanding and the peaceful
resolution of differences‘.54
7.46 The AGD also recognises that education and communication in this area
represents an ‗important aspect of ensuring that this legislation is applied fairly‘. The
AGD pointed to the establishment of the following program:
The Australian Federal Police delivers a cultural diversity program to all new recruits
and provides a booklet on Cultural Diversity as a ready reference to different cultures.
This booklet, A Practical Reference to Religious Diversity for Operational Police and
Emergency Services, is produced by the Australasian Police Multicultural Advisory
Bureau. In furtherance to this, a program focusing on Islamic culture will be delivered
across the organisation to all employees, with the first of many courses commencing
this financial year.55
7.47 In relation to monitoring, PIAC submits that the government should ‗monitor
the impact of these provisions through collection of statistics on who is being subject to
these measures and whether they are being abused‘.56 Similarly, Emrys Nekvapil
suggests the establishment of ‗accessible complaint mechanisms for people targeted by
these laws‘ and ‗a comprehensive system of reporting and recording all incidents,
investigations and crimes under the new sedition legislation‘.57
7.48 The AGD notes that a person who feels they have suffered indirect
discrimination in contravention of the RDA may complain to HREOC or initiate action
in the courts.58 It also would be possible to take a complaint to the Commonwealth
Ombudsman or to seek disciplinary action against an Australian Federal Police officer.
52
53
54
55
56
57
58
E Nekvapil, Submission SED 45, 13 April 2006.
B Saul, Submission SED 52, 14 April 2006.
E Nekvapil, Submission SED 45, 13 April 2006.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
Public Interest Advocacy Centre, Submission SED 57, 18 April 2006.
E Nekvapil, Submission SED 45, 13 April 2006.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
7. Sedition and Freedom of Expression
125
ALRC’s view
7.49 One concern of the ALRC is the risk that the choice about the categories of
people prosecuted for a sedition offence may be tainted by politics. As outlined in
Chapter 3, the law of sedition historically has been used to criminalise political dissent
in a manner that seems incompatible with contemporary notions of free speech in a
liberal democracy.
7.50 The ALRC considers that this risk can be dealt with in two ways. First, it
proposes that the term ‗sedition‘ be removed from the statute book, thereby severing
the tie with the old jurisprudence, which pays insufficient regard to freedom of
expression and freedom of association.59 Secondly, the ALRC proposes repeal of the
current provisions dealing with consent to prosecutions. The ALRC endorses the
independent role of the Commonwealth Director of Public Prosecutions (CDPP) in
making prosecutorial decisions, and in the particular context of these offences, it is
preferable to remove the requirement for the Attorney-General‘s consent in order to
avoid any perception that there may be a political element in the decision about
whether or not to prosecute.60
7.51 The ALRC is of the view that the legislation is itself neither directly nor
indirectly discriminatory. As Gummow, Hayne and Heydon JJ stated in Purvis v New
South Wales, ‗the requirement for equality of treatment‘ is ‗central to the operation of
… the Racial Discrimination Act 1975‘. A ‗central purpose‘ of the Act ‗is to require
that people not be treated differently‘ on the grounds prescribed in the Act.61 It cannot
reasonably be said that the statutory provisions that are the subject of this inquiry
promote an object, or tend towards consequences, inconsistent with the operative
purpose of the RDA. Although the sedition offences are not structured so as to promote
unlawful discrimination, this is not to say that discrimination in this area is impossible.
On one level, any offence may be applied in a discriminatory manner to target
particular groups. Again, if that occurs, there are avenues of redress through HREOC
and the federal courts.
7.52 The ALRC is conscious of the genuinely held concern that the sedition offences
may operate unfairly, particularly against people of the Muslim faith or those from a
Middle Eastern background. However, as explained below, the ALRC considers that
the most appropriate way to deal with the risk of unfair application of the sedition
provisions is through education and related strategies.62 For this reason, the ALRC
proposes that the Australian Government should continue to pursue strategies, such as
educational programs, to promote inter-communal harmony and understanding.
59
60
61
62
See Ch 2 and Proposals 2–1 and 2–2.
See Ch 8 and Proposal 8–12.
Purvis v New South Wales (2003) 217 CLR 92, 153–154.
See Ch 9 and Proposal 9–4.
126
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Absence of bills of rights in Australia
7.53 As previously noted, the ACT is the only Australian jurisdiction that currently
possesses a bill of rights.63 Section 16 of the Human Rights Act 2004 (ACT)
specifically recognises freedom of expression, stating that:
(1)
Everyone has the right to hold opinions without interference.
(2)
Everyone has the right to freedom of expression. This right includes the
freedom to seek, receive and impart information and ideas of all kinds,
regardless of borders, whether orally, in writing or in print, by way of art, or in
another way chosen by him or her.
7.54 The Chief Minister of the ACT submits that the sedition provisions, ‗if passed
locally [ie in the ACT], would be inconsistent with the Human Rights Act 2004‘. In his
view, they would fail the test of proportionality by the following chain of reasoning.
First, while it is legitimate for government to attempt to stop the spread of terrorism, it
is ‗not legitimate to suppress mere commentary, even radical commentary, on such
issues‘. Secondly, there is no ‗rational connection between the offences and the
legitimate objective of preventing the spread of terrorist activities‘. Thirdly, the
provisions do not represent the least restrictive means possible of achieving the
legitimate aim of preventing terrorism because they are too vague and, potentially, too
broad. In particular, the offences should contain a requirement that a person charged
with a sedition offence must ‗intend that the conduct urged be in fact carried out‘.
Also, ‗assist‘ in s 80.2(7) and (8) ‗is too wide and too imprecise‘. Fourthly, the
defences do not provide adequate protection for legitimate expression.64
7.55 The Victorian Government has indicated its intention to enact a Charter of
Human Rights and Responsibilities. A Bill for this purpose was introduced in the
Victorian Legislative Assembly on 2 May 2006 and received its second reading speech
on 4 May 2006.65 The Bill is designed to ‗establish a framework for the protection and
promotion of human rights‘, based on those contained in the ICCPR.66 The Bill
contains a provision recognising freedom of expression in a manner similar to art 19 of
the ICCPR:
(1)
Every person has the right to hold an opinion without interference.
(2)
Every person has the right to freedom of expression which includes the freedom
to seek, receive and impart information and ideas of all kinds, whether within or
outside Victoria and whether—
(a) orally; or
(b) in writing; or
(c) in print; or
63
64
65
66
Human Rights Act 2004 (ACT).
Chief Minister (ACT), Submission SED 44, 13 April 2006.
Charter of Human Rights and Responsibilities Bill 2006 (Vic).
Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic).
7. Sedition and Freedom of Expression
127
(d) by way of art; or
(e) in another medium chosen by him or her.
(3)
Special duties and responsibilities are attached to the right of freedom of
expression and the right may be subject to lawful restrictions reasonably
necessary—
(a) to respect the rights and reputation of other persons; or
(b) for the protection of national security, public order, public health or
public morality.67
7.56 Governments in Tasmania, Western Australia and New South Wales also have
indicated that they may consider the introduction of bills of rights.68 However, recent
news reports suggest that the current Australian Government intends to oppose—
possibly, by way of legal challenge—any attempt by a state to introduce its own bill of
rights.69
7.57 In most comparable foreign jurisdictions, freedom of expression is protected in a
statutory or constitutional bill of rights. Some jurisdictions—including the United
States, Canada,70 Germany71 and South Africa72—provide constitutional protection to
freedom of expression. The archetypal constitutional articulation of freedom of
expression is the First Amendment to the United States Constitution, which states:
Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the Government for a redress of
grievances.
7.58 Other jurisdictions recognise freedom of expression in statutory bills of rights,
such as those of the United Kingdom73 and New Zealand.74 Irrespective of whether it is
protected by a constitutional or a statutory bill of rights, freedom of expression in these
jurisdictions tends to be conceived, and protected, in a manner that is broadly
consistent with the approach taken in art 19 of the ICCPR.75 In other words, freedom of
67
68
69
70
71
72
73
74
75
Charter of Human Rights and Responsibilities Bill 2006 (Vic), cl 15.
E Hannan, ‗Minister Joins Bill of Rights Backers‘, The Australian, 20 March 2006, 15; M Farr, ‗PM Will
Fight States‘ Push for Bill of Rights‘, The Daily Telegraph (Sydney), 27 March 2006, 13.
See, eg, M Farr, ‗PM Will Fight States‘ Push for Bill of Rights‘, The Daily Telegraph (Sydney),
27 March 2006, 13; M Farr, ‗State Rights Push Wrong‘, The Daily Telegraph (Sydney), 7 April 2006, 17.
Canadian Charter of Rights and Freedoms s 2(b).
Basic Law art 5(1).
Constitution of the Republic of South Africa 1996 s 16.
Human Rights Act 1998 (UK) ss 12–13, which should be read in conjunction with the Convention for the
Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222, (entered
into force generally on 3 September 1953) art 10.
New Zealand Bill of Rights Act 1990 (NZ) ss 13–14.
International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into
force generally on 23 March 1976). See Ch 5 for an analysis of art 19 of the ICCPR.
128
Review of Sedition Laws
expression is regarded as a human right of fundamental importance, though in certain
circumstances this right must be reconciled with other competing rights or interests.
7.59 Submissions and consultations express a concern that the sedition provisions are
made more problematic by the absence of a federal bill of rights in Australia.76 Some
express this concern in general terms, with the argument essentially being that a bill of
rights would provide an important counter-balance to any undesirable incursions that
the sedition provisions might make on people‘s human rights.77
7.60 Another concern expressed is that it is inappropriate to justify Australia‘s
sedition legislation on the basis that other jurisdictions have similar legislation because
those jurisdictions (most notably, the United Kingdom) do possess a bill of rights.78
ALRC’s view
7.61 It may be the case that the presence of a bill of rights would provide some
safeguards against the unwarranted and undesirable incursion of anti-terrorism
measures into individuals‘ human rights. However, the question whether Australia
should enact a bill of rights falls well outside the Terms of Reference in this Inquiry
and the ALRC does not express any opinion on this matter.
7.62 Nevertheless, two points should be made. First, the fact that a jurisdiction has a
bill of rights does not prevent that jurisdiction from taking robust anti-terrorism
measures. This is evidenced by recent legislative amendments in the United States, the
United Kingdom and elsewhere.79 This demonstrates that governments bound by
constitutional or statutory bills of rights nevertheless consider it is possible to reconcile
vigorous responses to terrorism with formal, enforceable requirements to respect
individual human rights.
7.63 Secondly, the absence of a bill of rights at the federal level in Australia does not
remove or lessen the importance of measuring the sedition provisions against accepted
human rights standards. The absence of a federal bill of rights heightens the need for
legislation to be carefully considered—both prior to enactment in Parliament and when
the law is subject to later review—in order to ensure that the provisions do not breach
fundamental human rights, as recognised, for instance, in the ICCPR.
Sedition and freedom of expression generally
7.64 The sedition offences unquestionably involve some dilution of an absolute
notion of freedom of expression. In criminalising certain categories of expression, the
relevant statutory provisions must necessarily reduce the scope of lawful expression.
76
77
78
79
E Nekvapil, Submission SED 45, 13 April 2006; Public Interest Advocacy Centre, Submission SED 57,
18 April 2006; Media and Arts Organisations, Consultation, Sydney, 29 March 2006.
See, eg, Public Interest Advocacy Centre, Submission SED 57, 18 April 2006.
E Nekvapil, Submission SED 45, 13 April 2006.
See, in particular, the discussion in Ch 6.
7. Sedition and Freedom of Expression
129
7.65 As a general proposition, this is neither unique nor illegitimate. For instance, the
law in Australia and elsewhere has always imposed legal restrictions on certain forms
of expression—for instance, where it is defamatory (civil liability), or indecent or
obscene (criminal liability). The Privy Council, hearing an appeal from the High Court
of Australia in 1936, observed:
Free speech does not mean free speech; it means speech hedged in by all the laws
against defamation, blasphemy, sedition and so forth; it means freedom governed by
law… 80
7.66 The question is whether the sedition offences impose an unwarranted or
unlawful burden on freedom of expression. Particular concern has been expressed that
the sedition offences will impact negatively on members of the media and the arts.
However, other groups of people who are said to be at particular risk of being affected
include academics,81 political activists, religious leaders and dissidents more generally.
Submissions and consultations
7.67 Many stakeholders argue that the offences, taken as a whole, are likely to chill
free speech within the community in a manner inconsistent with Australia‘s status as a
liberal democracy.82 This criticism often is linked to the more specific concern that the
offences may be interpreted broadly, and unduly infringe upon freedom of
expression.83
80
81
82
83
James v Commonwealth (1936) 55 CLR 1, 56.
See Australian Vice-Chancellor‘s Committee, Submission SED 60, 25 April 2006.
S Smith, Submission SED 04, 24 March 2006; B Ho, Submission SED 07, 9 March 2006; A Spathis,
Submission SED 17, 10 April 2006; The Law Society of Western Australia, Submission SED 19,
28 March 2006; letter accompanying National Tertiary Education Union, Submission SED 25, 10 April
2006; Australian Writers‘ Guild, Submission SED 29, 11 April 2006; Federation of Community Legal
Centres (Vic), Submission SED 33, 10 April 2006; Screen Producers Association of Australia, Submission
SED 35, 11 April 2006; Fitzroy Legal Service Inc, Submission SED 40, 10 April 2006; Victoria Legal
Aid, Submission SED 43, 13 April 2006; Chief Minister (ACT), Submission SED 44, 13 April 2006;
Australian Press Council Office, Submission SED 48, 13 April 2006; Australian Screen Directors
Association Limited, Submission SED 51, 10 April 2006; B Saul, Submission SED 52, 14 April 2006;
Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006; John Fairfax
Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April 2006, which
was endorsed in Australian Broadcasting Corporation, Submission SED 49, 20 April 2006; B Wright,
Submission SED 58, 19 April 2006; National Legal Aid, Submission SED 62, 20 April 2006; Australian
Vice-Chancellor‘s Committee, Submission SED 60, 25 April 2006; Media and Arts Organisations,
Consultation, Sydney, 29 March 2006; Media Organisations, Consultation, Sydney, 28 March 2006.
Australian Society of Authors, Submission SED 24, 18 April 2006; letter accompanying National Tertiary
Education Union, Submission SED 25, 10 April 2006; Professor JM Coetzee, Tom Keneally and David
Williamson on behalf of Sydney PEN, Sydney PEN, Submission SED 27, 10 April 2006; Australian
Writers‘ Guild, Submission SED 29, 11 April 2006; National Association for the Visual Arts, Submission
SED 30, 11 April 2006; Centre for Media and Communications Law, Submission SED 32, 12 April 2006;
Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006; Australia Council for
the Arts, Submission SED 34, 11 April 2006; New South Wales Council for Civil Liberties Inc,
Submission SED 39, 10 April 2006; Chief Minister (ACT), Submission SED 44, 13 April 2006; Arts Law
Centre of Australia, Submission SED 46, 13 April 2006; Australian Lawyers for Human Rights,
130
Review of Sedition Laws
7.68 AMCRAN submits that ‗the sedition offences lead to a significant chilling effect
on the Muslim community in expressing legitimate support for self-determination
struggles around the world‘.84 AMCRAN observes:
The offences have a particular effect on Muslim community groups who may wish to
express solidarity with Muslims who live under oppressive regimes or various kinds
of occupying forces. This is particularly the case as the law makes no distinction
between legitimate liberation and independence movements and terrorism.85
7.69 There is particular concern about s 80.2(7) and (8), with a number of people
arguing that these provisions are too broad, inhibiting freedom of expression to an
unwarranted degree.86 The National Association for the Visual Arts (NAVA) submits:
[O]rganizers and speakers at the huge protest marches and gatherings of thousands of
Australian citizens which took place immediately prior to the commitment by the
Australian government to join the ‗Coalition of the Willing‘ in sending troops to Iraq,
could now be regarded as urging conduct which assists a country at war with
Australia and therefore seditious under this law.87
The New South Wales Council for Civil Liberties and the Fitzroy Legal Service offer
similar examples,88 and argue that criminalising such activity would be fundamentally
anti-democratic.
7.70 Most critics of s 80.2(7) and (8) argue for repeal.89 Others put as their preferred
position90—or as a second preference if repeal is unavailable91—that these provisions
should be amended to ensure they only capture conduct intended to lead to violence.
84
85
86
87
88
89
90
91
Submission SED 47, 13 April 2006; Combined Community Legal Centres Group (NSW) Inc, Submission
SED 50, 13 April 2006; Australian Muslim Civil Rights Advocacy Network, Submission SED 54,
17 April 2006; John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission
SED 56, 18 April 2006, which was endorsed in Australian Broadcasting Corporation, Submission SED
49, 20 April 2006; Public Interest Advocacy Centre, Submission SED 57, 18 April 2006; Australian ViceChancellor‘s Committee, Submission SED 60, 25 April 2006; N Roxton Shadow Attorney-General,
Submission SED 63, 28 April 2006; Human Rights and Equal Opportunity Commission, Consultation,
Sydney, 31 March 2006; Human Rights Lawyers, Consultation, Sydney, 29 March 2006; Media
Organisations, Consultation, Sydney, 28 March 2006.
Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006.
Ibid.
National Association for the Visual Arts, Submission SED 30, 11 April 2006; New South Wales Council for
Civil Liberties Inc, Submission SED 39, 10 April 2006; Arts Law Centre of Australia, Submission
SED 46, 13 April 2006; Australian Press Council Office, Submission SED 48, 13 April 2006; John
Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006, which was endorsed in Australian Broadcasting Corporation, Submission SED 49, 20 April 2006.
National Association for the Visual Arts, Submission SED 30, 11 April 2006.
New South Wales Council for Civil Liberties Inc, Submission SED 39, 10 April 2006; Fitzroy Legal
Service Inc, Submission SED 40, 10 April 2006.
See, eg, New South Wales Council for Civil Liberties Inc, Submission SED 39, 10 April 2006; Fitzroy
Legal Service Inc, Submission SED 40, 10 April 2006.
Australian Major Performing Arts Group, Submission SED 61, 16 April 2006; N Roxton Shadow
Attorney-General, Submission SED 63, 28 April 2006.
New South Wales Council for Civil Liberties Inc, Submission SED 39, 10 April 2006; Victoria Legal Aid,
Submission SED 43, 13 April 2006; Australian Press Council Office, Submission SED 48, 13 April 2006;
7. Sedition and Freedom of Expression
131
7.71 In response, the AGD provided its own hypothetical examples, drawing the
following distinction:
Where someone places a notice on the internet calling for a more restrictive
immigration policy in relation to young people from certain countries, it might enrage
many young people from those countries, but it would not amount to sedition if it was
genuinely about immigration policy. Therefore people who are merely criticising
government policy or urging a change to the law have a defence available to them.92
ALRC’s view
7.72 Among the provisions that are the subject of this Inquiry, s 80.2(7) and (8) of the
Criminal Code have the greatest potential to cause incursions into the right to freedom
of expression. The ALRC shares the concern that these provisions do not draw a clear
enough distinction between legitimate dissent—speech that ought not to be interfered
with in a liberal democracy—and expression, whose purpose or effect is to cause the
use of force or violence within the state. Lee, Hanks and Morabito make the point in
the following terms:
A distinction has to be made between, on the one hand, those who wish to overthrow
the democratic system or use violence or threats of violence to violate democratic
procedures and, on the other hand, those who seek radical change in the social,
economic or political arrangements within the democratic system. Such a distinction
must not be abandoned, even though difficulty may arise in particular cases.93
7.73 For these reasons, and those discussed in Chapter 8, the ALRC proposes the
repeal of s 80.2(7) and (8). Further, the ALRC proposes that the similar treason
offences in s 80.1(1)(e)–(f) be modified to make it clear that mere rhetoric or
expressions of dissent are not caught. The prosecution should have to prove beyond
reasonable doubt that the defendant has materially assisted an enemy to wage war—for
instance, by way of funds, troops, armaments or strategic information.94
7.74 As discussed in detail in Chapters 8 to 10, the ALRC also proposes reframing
the elements required for liability under s 80.2(1), (3) and (5) of the Criminal Code. In
conscious recognition of the need for clear protection for freedom of expression, the
ALRC proposes that the prosecution should be required to prove that the person
intended that the force or violence urged will occur (Proposal 8–1). Under
Proposal 10–2, the trier of fact, in considering this element of the offence, would be
asked to consider the context—that is, whether the conduct in question was done: in
connection with the performance or exhibition of an artistic work; as part of any
92
93
94
Australian Screen Directors Association Limited, Submission SED 51, 10 April 2006; John Fairfax
Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April 2006, which
was endorsed in Australian Broadcasting Corporation, Submission SED 49, 20 April 2006.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
H Lee, P Hanks and V Morabito, In the Name of National Security: The Legal Dimensions (1995), 17.
See Proposals 8–8 and 8–9, and accompanying text in Ch 8.
132
Review of Sedition Laws
discussion or debate in pursuit of any genuine academic, artistic or scientific purpose,
or for any other genuine purpose in the public interest; in connection with an industrial
dispute or an industrial matter; or in publishing a report or commentary about a matter
of public interest.
Journalism and the arts
7.75 Particular concerns have been expressed to the Inquiry that the sedition offences
may impact negatively on the right to freedom of expression enjoyed by journalists and
their publishers, as well as people engaging in or facilitating artistic expression—all of
whom may be exposed to restrictions on freedom of expression because their role often
involves reporting or reflecting unpopular or dissenting viewpoints.
Journalists
7.76 Submissions to the Inquiry identify particular concern that the sedition
provisions could leave the established media organisations liable to prosecution for
carrying out their functions of news reporting and the dissemination of bona fide
comment on matters of public interest or importance.95 The general concern, as
expressed in the joint submission of Fairfax, News Ltd and AAP, is that there is ‗a real
risk‘ that
a comment made, letter or advertisement published, wire service story or interview
reproduced, factual report carried, video-tape footage published, editorial opinion
expressed, or feature film or documentary screened could by reason of its subject
matter, prominence, content, tone, wording, manner of promotion and ultimate
authorship be thought capable of being held by a jury to amount to ‗urging‘ of a
proscribed kind … particularly if it were perceived to form part of an ongoing
campaign.96
7.77 Several specific concerns also were identified. First, the provisions could lead to
self-censorship because media organisations are uncertain about how broadly the
provisions will be interpreted. Essentially, the concern seems to be that ‗fear of
inadvertently breaching the law is likely to impact on the willingness of many in the
95
96
Media Entertainment and Arts Alliance, Submission SED 28, 10 April 2006; Victoria Legal Aid,
Submission SED 43, 13 April 2006; Australian Screen Directors Association Limited, Submission SED
51, 10 April 2006; B Saul, Submission SED 52, 14 April 2006; John Fairfax Holdings Ltd, News Limited
and Australian Associated Press, Submission SED 56, 18 April 2006, which was endorsed in Australian
Broadcasting Corporation, Submission SED 49, 20 April 2006; Public Interest Advocacy Centre,
Submission SED 57, 18 April 2006; Free TV Australia, Submission SED 59, 19 April 2006; Australian
Vice-Chancellor‘s Committee, Submission SED 60, 25 April 2006; N Roxton Shadow Attorney-General,
Submission SED 63, 28 April 2006; Media Organisations, Consultation, Sydney, 28 March 2006; Human
Rights Lawyers, Consultation, Sydney, 29 March 2006.
John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006. Agreement with this position was expressed in Australian Broadcasting Corporation, Submission
SED 49, 20 April 2006. See also Free TV Australia, Submission SED 59, 19 April 2006.
7. Sedition and Freedom of Expression
133
community to publicly express their views and their opposition to government actions
and programs‘.97 The Media, Entertainment and Arts Alliance (MEAA) submit:
Part of the uncertainty stems from the wording, including the offences of ‗urging‘
others to use ‗force or violence‘ and the question of intent. It is hard to control or
predetermine how individuals will interpret the various layers of meaning that
comprise an actor‘s performance or a playwright/screenwriter‘s script.98
7.78 Another concern relates to the potential breadth of the ‗urging‘ offences in
s 80.2 of the Criminal Code. The MEAA ask whether journalists ‗who directly quote
other people in their stories‘ are likely to commit an urging offence, albeit
‗unwittingly‘.99 Fairfax, News Ltd and AAP express a similar fear, noting that it might
become increasingly difficult for the media lawfully to ‗facilitate or contribute to
debate on the topic of ―terrorism‖‘.100
7.79 Thirdly, the offences of assisting the enemy in s 80.2(7) and (8) are potentially
so broad as to capture conduct that ought not to be criminalised. The MEAA
hypothesises as follows:
A play sympathetic to Iraqi Insurgents; an article celebrating the Eureka Stockade that
draws parallels with the current workplace struggles; cartoonists and commentators
giving drawn, written or verbal support or encouragement to groups deemed to be
‗enemies‘ of the Commonwealth … could all conceivably be caught by this offence.
Of major concern is that the ‗enemy‘ does not have to be an organisation or a country
with which a state of war has been declared. It can be one ‗specified by Proclamation
made for the purpose of paragraph 80.1(1)(e) to be an enemy at war with the
Commonwealth.101
7.80 The AGD reject criticism that the sedition provisions unduly infringe upon the
ability of the media to operate freely:
Given that the sedition offences always involve intentionally urging violence (either
directly or indirectly by assisting an enemy), it is unlikely that the conduct of
journalists and media organisations would be captured within these offences.102
97
98
99
100
101
102
Public Interest Advocacy Centre, Submission SED 57, 18 April 2006.
Media Entertainment and Arts Alliance, Submission SED 28, 10 April 2006. See also, Victoria Legal Aid,
Submission SED 43, 13 April 2006; Public Interest Advocacy Centre, Submission SED 57, 18 April 2006.
Media Entertainment and Arts Alliance, Submission SED 28, 10 April 2006. See also Free TV Australia,
Submission SED 59, 19 April 2006.
John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006, which was endorsed in Australian Broadcasting Corporation, Submission SED 49, 20 April 2006.
Media Entertainment and Arts Alliance, Submission SED 28, 10 April 2006. See also John Fairfax
Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April 2006, which
was endorsed in Australian Broadcasting Corporation, Submission SED 49, 20 April 2006. A similar
concern is expressed by Free TV Australia, Submission SED 59, 19 April 2006.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
134
Review of Sedition Laws
7.81 The AGD‘s submission also points out that, in any event, under existing law ‗the
defence of good faith would protect journalists and media organisations that act in
good faith‘.103
The arts
7.82 A number of stakeholders expressed the concern that the sedition provisions are
likely to ‗chill‘ free artistic expression by encouraging artists and authors to engage in
self-censorship or risk facing prosecution.104 There was a concern that the offences
may be interpreted so as to criminalise certain forms of satire, parody and ridicule.105
7.83 The Australian Writers‘ Guild submit that the chilling effect of the sedition
provisions will lead to self-censorship, which will have the following effect:
If writers know that their works have little chance of being produced as they may be
perceived as risky, seditious or confrontational, there is less likelihood of writers
creating such works and of striving only to meet the requirements of broadcasters and
publishers. Stories will remain untold. Voices will remain unheard. Audiences will
not be challenged, ideas will not be thrust forward. Life will become increasingly
unexamined. And Australia will not only lose a richness and diversity in terms of the
kinds of films, television programmes, theatre and interactive content available to
them, there is the real chance that we will also lose a vast amount of skills.106
7.84 The Arts Law Centre of Australia submit that the sedition provisions might
impact disproportionately on impecunious artists because they will be ‗unwilling to
risk incurring fees for legal advice, let alone defending actions‘.107
7.85 A further risk—one that NAVA submits is already a reality—is that those who
facilitate the exhibition and performance of artistic works (gallery owners, theatre
103
104
105
106
107
Ibid.
Confidential, Submission SED 12, 4 April 2006; Australian Society of Authors, Submission SED 24,
18 April 2006; Media Entertainment and Arts Alliance, Submission SED 28, 10 April 2006; Australian
Writers‘ Guild, Submission SED 29, 11 April 2006; Centre for Media and Communications Law,
Submission SED 32, 12 April 2006; Screen Producers Association of Australia, Submission SED 35,
11 April 2006; Victoria Legal Aid, Submission SED 43, 13 April 2006; Chief Minister (ACT),
Submission SED 44, 13 April 2006; Arts Law Centre of Australia, Submission SED 46, 13 April 2006;
Australian Press Council Office, Submission SED 48, 13 April 2006; Australian Screen Directors
Association Limited, Submission SED 51, 10 April 2006; Media and Arts Organisations, Consultation,
Sydney, 29 March 2006.
Media and Arts Organisations, Consultation, Sydney, 29 March 2006; The Cameron Creswell Agency
Pty Ltd, Submission SED 26, 10 April 2006; Media Entertainment and Arts Alliance, Submission SED 28,
10 April 2006; Australian Writers‘ Guild, Submission SED 29, 11 April 2006; New South Wales Council
for Civil Liberties Inc, Submission SED 39, 10 April 2006; N Roxton Shadow Attorney-General,
Submission SED 63, 28 April 2006.
Australian Writers‘ Guild, Submission SED 29, 11 April 2006. A similar point is made in Australian Press
Council Office, Submission SED 48, 13 April 2006.
Arts Law Centre of Australia, Submission SED 46, 13 April 2006.
7. Sedition and Freedom of Expression
135
companies etc) will refuse to deal with certain works if they are fearful that they may
be interpreted as being seditious.108
7.86 During consultations, a number of hypothetical scenarios were raised. Some
stakeholders express the fear that mere discussion of certain matters related to
terrorism could be caught by the new sedition provisions. NAVA offers the following
hypothetical example:
[A]n artist might represent the events of September 11 intending this to be critical of
what happened. However, a viewer may think that the artist is in support of the
perpetrators. The artist could be accused of being responsible for urging another
person to commit similar offences, as a result of the viewer interpreting their artwork
in an unintended way.109
7.87 The Cameron Creswell Agency Pty Ltd is concerned that ‗a telemovie about the
recent events on Palm Island that contained a (possibly fictional, possibly real)
character who called for the overthrow of the government‘ or ‗a film like Syriana with
its sympathetic portrayal of Islamic suicide bombers‘ might fall foul of the sedition
provisions.110
7.88 NAVA offer the following example from recent events:
In late December 2005 NAVA learned of an incident where an invited video artist
visiting from overseas was taking documentary video footage in public places. Twice
in 10 days the artist was told that his/her name would be sent for possible inclusion in
a terrorist watch list. In the first instance, despite previously having been given
official authorisation, the artist was apprehended by a security official who took
his/her ID details. Some of the video footage had to be deleted. The second time the
same artist was baled up by the police while videoing road signs in a regional town in
NSW and the same threat made.111
7.89 A number of submissions noted that the effect of the sedition offences on
chilling free expression would likely be much greater than the risk of actual
prosecutions and convictions.112
108
109
110
111
112
National Association for the Visual Arts, Submission SED 30, 11 April 2006. NAVA gives the example
of the difficulty faced by two artists in finding a venue to exhibit their performance, which was ‗much
like a school chemistry lesson and demonstrated how to make chemical explosives including fire bottles,
Molotov cocktails, light-bulb bombs, etc‘.
Ibid.
The Cameron Creswell Agency Pty Ltd, Submission SED 26, 10 April 2006. See also Australian Lawyers for
Human Rights, Submission SED 47, 13 April 2006.
National Association for the Visual Arts, Submission SED 30, 11 April 2006.
Arts Law Centre of Australia, Submission SED 46, 13 April 2006; Australian Screen Directors
Association Limited, Submission SED 51, 10 April 2006.
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Review of Sedition Laws
Suggestions for reform
7.90 A number of stakeholders propose legislative reform to dilute the potential
negative impact of the sedition provisions. NAVA favours repealing the offences in
s 80.2 of the Criminal Code but argues in the alternative for an amendment to these
provisions to make clear that ‗urging‘ for the purposes of s 80.2 means ‗intentional
urging or inciting politically motivated violence‘.113
7.91 NAVA proposes a program of education and policy to augment legislative
reform in this area, stating:
[T]he Federal Government should provide authoritative guidelines and an education
campaign to inform the police, security staff and community interest groups and
institutions about what is the appropriate course of action when a complaint is made
by members of the community about an artwork.114
ALRC’s view
7.92 As noted above, the ALRC proposes removal of the concept—and historical
legacy—of ‗sedition‘ from Australian criminal law.115 Chapters 8 to 10 contain a range
of proposals aimed at tightening the elements and interpretation of the ‗urging force or
violence‘ offences in order to minimise any effects on freedom of expression. Specific
recognition is given to the nature of the work of journalists, artists, academics, social
critics and others.
7.93 Taken together, Proposals 8–1 and 10–2 require the prosecution to prove that the
person intended that the force or violence they urged will occur—and in considering
this matter the trier of fact must take into account the context in which the statements
were made, including whether this was in connection with media reporting or
commentary, or expressed through visual or dramatic art. Proposal 8–9 makes clear
that the treason offences relating to ‗assisting the enemy‘ deal with the provision of
material assistance (guns, funds, intelligence) rather than with the expression or
reporting of dissenting views.
7.94 Finally, Proposal 11–1 calls for the repeal of the provisions in Part IIA of the
Crimes Act concerning unlawful associations, which should remove concerns by
universities, theatre owners, art galleries and others that they might be prosecuted for
hosting conduct by others that has an underlying ‗seditious intention‘.
113
114
115
National Association for the Visual Arts, Submission SED 30, 11 April 2006.
Ibid.
Proposals 2–1 and 2–2.
8. Offences Against Political Liberty
Contents
Introduction
Incitement and the sedition offences
Incitement and ulterior intention
Connection with a specific offence
ALRC‘s views
Fault elements
Fault elements under the Criminal Code
Fault elements and the sedition offences
ALRC‘s views
Other drafting issues
The meaning of ‗urges‘
Force or violence
Reasonable likelihood of violence
Urging the overthrow of the Constitution or Government
Framing the provision
ALRC‘s views
Urging interference in Parliamentary elections
Related offences
ALRC‘s views
Urging a person to assist the enemy
The meaning of ‗assist‘
Other issues
Reform of the treason offences
ALRC‘s views
Extraterritorial application
Implications of extra-territorial application
ALRC‘s views
Requirement of Attorney-General‘s consent
Consent and the prosecution process
ALRC‘s views
137
139
140
141
144
145
146
147
148
149
149
151
152
153
153
154
156
156
157
158
159
161
162
163
166
167
168
170
172
173
Introduction
8.1 This chapter presents the ALRC‘s proposals for reform of four of the five
existing sedition offences, which were inserted in s 80.2 of the Criminal Code (Cth)
138
Review of Sedition Laws
(Criminal Code) by Schedule 7 of the Anti-Terrorism Act (No 2) 2005 (Cth).1 These
offences are:
•
urging another person to overthrow the Constitution or Government by force or
violence;2
•
urging another person to interfere in Parliamentary elections by force or
violence;3
•
urging another person to assist an enemy at war with Australia;4
•
urging another person to assist those engaged in armed hostilities against the
Australian Defence Force (ADF).5
8.2 Issues solely concerning reform of s 80.2(5), which deals with urging intergroup violence6—and with its relationship with offences under anti-vilification
legislation—are dealt with separately in Chapter 9.
8.3 As discussed in Chapter 2, the ALRC considers that it is not appropriate for the
offences set out in s 80.2 to be described as ‗sedition‘. Rather, to the extent that
retention of the offences is justified, the focus should be on the urging of force or
violence and they should be characterised as offences against political liberty and
public order.
8.4 The ALRC proposes to retain, in a modified form, the present offences dealing
with urging force or violence to overthrow the Constitution or Government and urging
the use of force or violence to interfere in Parliamentary elections;7 and to repeal the
offences dealing with urging a person to assist the enemy or those engaged in armed
hostilities with the ADF.8 In connection with the latter, the ALRC also proposes
amendments to the treason offences set out in s 80.1 of the Criminal Code.
8.5 Aspects of the framing of the offences, both present and proposed, are discussed
in detail. These matters relate to the physical and fault elements of the offences and
include: the distinction between the offences under review and the offence of
incitement of other offences;9 the role of intention and recklessness as fault elements;
and the interpretation of certain terms used in the provisions. The chapter discusses
1
2
3
4
5
6
7
8
9
The relevant sections of the Criminal Code (Cth) are set out in full in Appendix 1. The relevant sections
of the Code, amended as proposed in this Discussion Paper, are set out in Appendix 2.
Criminal Code (Cth) s 80.2(1).
Ibid s 80.2(3).
Ibid s 80.2(7).
Ibid s 80.2(8).
Ibid s 80.2(5).
Ibid s 80.2(1), (3).
Ibid s 80.2(7), (8).
That is, the offence of incitement under Ibid s 11.4.
8. Offences Against Political Liberty
139
matters that are common to more than one of the present offences before dealing, in
turn, with reform of each specific offence.10
8.6 The chapter also examines the extraterritorial application of these offences and
the requirement for the Attorney-General to consent to prosecution.
Incitement and the sedition offences
8.7 Much conduct covered by the offences in s 80.2 of the Criminal Code will also
constitute incitement to commit other offences. Some of the relevant offences under
Commonwealth law that most closely relate to the offences in s 80.2 are set out in
detail in Chapter 4. These include:
•
the offence of treason under s 80.1 of the Criminal Code;
•
terrorism offences under Part 5.3 of the Criminal Code;
•
the offences concerning causing harm to Commonwealth officials under Part 7.8
of the Criminal Code;
•
offences against the government under Part II of the Crimes Act 1914 (Cth)
(Crimes Act);
•
offences concerning the protection of the Constitution and public services under
Part IIA of the Crimes Act;
•
offences under the Commonwealth Electoral Act 1918 (Cth);
•
offences under the Crimes (Foreign Incursions and Recruitment) Act 1978
(Cth); and
•
standard criminal offences prohibiting harm, or threats of harm, against persons
or property.
8.8 Part 2.4 of the Criminal Code provides extensions of criminal responsibility,
including in relation to attempt, conspiracy and incitement of criminal offences.
Incitement is set out in s 11.4 of the Criminal Code, which provides that:
(1) A person who urges the commission of an offence is guilty of the offence of
incitement.
10
The offences in s 80.2(7) and (8) are dealt with together.
140
Review of Sedition Laws
(2) For the person to be guilty, the person must intend that the offence incited be
committed.
8.9 The relationship between sedition and the incitement of other offences is
examined in detail below. This relationship is important in two ways. First, it has been
suggested that, because the conduct covered by the sedition offences may constitute
incitement to commit other offences, the sedition offences themselves are
unnecessary.11 Secondly, it has been suggested that, to the extent the sedition offences
extend criminal responsibility beyond incitement, the offences are too broad and
should be wound back.12
Incitement and ulterior intention
8.10 The requirement under s 11.4(2) that the person ‗must intend that the offence
incited be committed‘ is sometimes referred to as a ‗specific intention‘ or an ‗ulterior
intention‘—that is, engaging in conduct with the intention to achieve some further
objective or result.13 The requirement that the prosecution prove an ulterior intention
arguably is equivalent to a requirement of proof of purpose.14 In the context of
incitement to commit an offence, the requirement of an ulterior intention requires proof
beyond reasonable doubt that it was the offender‘s object to induce commission of the
offence incited.15
8.11 In contrast, the sedition offences do not require an ulterior intention that the
conduct incited be committed.16 This key difference between the ancillary offence of
incitement to commit an offence and the sedition offences can be examined using
terrorism offences under Part 5.3 of the Criminal Code as an example.
8.12 Under s 101.6(1) of the Criminal Code, a person commits an offence if the
person ‗does any act in preparation for, or planning, a terrorist act‘. ‗Terrorist act‘ is
defined in s 100.1 and covers any action that: (a) causes serious physical harm or death
to a person, endangers a person‘s life, or creates a serious health or safety risk;17 and
(b) is done with the intention of advancing a political, religious or ideological cause
and of coercing or influencing a government by intimidation. Importantly, under
s 101.6(2), a person may commit the preparatory terrorist offence even if a terrorist act
does not occur; or the person‘s act is not done in preparation for, or planning, a specific
terrorist act; or is done in preparation for, or planning, more than one terrorist act.
11
12
13
14
15
16
17
See, eg, J Goldring, Submission SED 21, 5 April 2006.
ARTICLE 19, Submission SED 14, 10 April 2006.
I Leader-Elliot, The Commonwealth Criminal Code: A Guide for Practitioners, Attorney-General‘s
Department and Australian Institute of Judicial Administration, 1 March 2002, 61.
Ibid, 61, referring to Chew v The Queen (1991) 173 CLR 626.
I Leader-Elliot, The Commonwealth Criminal Code: A Guide for Practitioners, Attorney-General‘s
Department and Australian Institute of Judicial Administration, 1 March 2002, 273.
This also stands in contrast to the repealed Crimes Act 1914 (Cth) sedition offences, which required the
person to engage in a seditious enterprise or publish seditious words ‗with the intention of causing
violence or creating public disorder or a public nuisance‘: Crimes Act 1914 (Cth) ss 24C–24D.
Criminal Code (Cth) s 100.1(2).
8. Offences Against Political Liberty
141
8.13 A person is guilty of the offence of incitement, under s 11.4, if he or she urges
another person to prepare or plan a terrorist act and intends that the offence of
preparing or planning a terrorist act be committed. A person may be found guilty of
incitement even if committing the offence incited is impossible.18
8.14 Some conduct that urges another person to overthrow the government by force
or violence, in terms of the sedition offence in s 80.2(1), also could constitute
incitement to plan a terrorist act. For example, a person may indicate to a gathering of
other individuals (who share a political, religious or ideological cause) that they should
prepare to bomb the Australian Parliament on ANZAC Day in order to intimidate or
overthrow the Australian Government.
8.15 However, it is less clear that incitement to plan a terrorist act would cover
conduct that amounts to a more generalised call to action—for example, to prepare to
use force against the Australian Government in order to intimidate or overthrow it.
Even in the case of the broadly framed terrorism offences,19 incitement requires a
connection to a substantive offence. That is, because it must be shown that the person
intended ‗the offence incited‘ be committed, the person must have a particular offence
in mind.20
8.16 Interestingly, the terrorism offences under Part 5.3 of the Criminal Code extend
to a range of specific acts that ordinarily might be expected to be covered by
extensions of criminal responsibility applying to more general substantive offences.
That is, offences such as possessing things connected with terrorist acts;21 making
documents likely to facilitate terrorist acts;22 or doing any acts in preparation or
planning for terrorist acts;23 are the kinds of conduct that, in other contexts, would be
caught by attempt, complicity and common purpose, incitement or conspiracy.24
Connection with a specific offence
8.17 It was noted in Issues Paper 30 (IP 30) that the framing of the new sedition
offences was aimed at overcoming the obstacle posed by the requirement to show a
18
19
20
21
22
23
24
Ibid s 11.4(3). For example, where the person urged to commit the offence is an undercover police officer
who would never actually carry through the plan; or the building that is to be attacked has burned down
already.
Courts have recognised the ‗clear intention of Parliament to create offences where [a principal] offender
has not decided precisely what he or she intends to do‘: Lodhi v The Queen [2006] NSWCCA 121, [66].
It is, however, clear that incitement can be directed to the world at large: R v Most (1881) 7 QBD 244; for
example, in a speech to a crowd: Pankhurst v Kiernan (1917) 24 CLR 120.
Criminal Code (Cth) s 101.4.
Ibid s 101.5.
Ibid s 101.6.
Under Ibid Part 2.4.
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Review of Sedition Laws
connection to a terrorist act or a particular terrorist organisation, in order to prove
incitement to commit a terrorism offence.25
8.18 The Australian Government Attorney-General‘s Department (AGD) has stated
that there was ‗absolutely no doubt‘ that the new sedition offences would be easier to
establish than incitement to commit an offence, and that this was justified because ‗in
this case the urging of the use of force and violence is in its own right dangerous and
should be prohibited as a separate offence‘.26
8.19 In its submission to this Inquiry, the AGD confirms this perspective and states:
In the context of terrorism, proving that a person who urges or encourages the
commission of a terrorism offence is guilty of the offence of ‗incitement‘ under the
Criminal Code would require proof that the person intended that the offence incited
be committed. That would require proof of a connection to a ‗terrorist act‘.
A significant difference with the new sedition offence, as opposed to relying on
incitement under section 11.4 of the Criminal Code, is that the requirement to prove a
connection to a terrorist act or a particular terrorist organisation is removed. The
rationale is that while it may not be possible to show that a person intends that the
relevant offence be committed, to communicate such ideas is dangerous as it can be
taken up by the naïve and impressionable to cause harm to the community.27
8.20 Dr Ben Saul states that incitement under the Criminal Code
is largely consistent with the meaning of incitement (or instigation) in international
criminal law, which requires direct and explicit encouragement, along with a direct
intent to provoke the offence (or an awareness of the likelihood that the crime would
result). The incitement must aim to cause a specific offence, and vague or indirect
suggestions are not sufficient. There must be a ‗definite causation‘ between the
incitement and a specific offence.28
8.21 It is not clear exactly how specific an intention that an offence be committed
needs to be, in order to constitute incitement. The ALRC has found little guidance in
Australian case law, perhaps because incitement to commit offences is not often
prosecuted.29 The Prosecution Policy of the Commonwealth, prepared by the Office of
the Director of Public Prosecutions (DPP), states that, whenever possible, substantive
charges should be laid, rather than ancillary charges such as incitement or conspiracy.30
25
26
27
28
29
30
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), [3.108] citing The Hon
Philip Ruddock MP (Attorney-General), New Counter Terrorism Measures: Incitement of Terrorism
(Question and Answer Brief 17 October 2005) (2005) <www.abc.net.au/mediawatch/img/2005
/ep33/tpsedition.pdf> at 12 March 2006).
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [5.61]; Australian Government Attorney-General‘s Department, Submission
290A to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 22 November 2005, 3.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
B Saul, Submission SED 52, 14 April 2006.
Commonwealth Director of Public Prosecutions, Consultation, Canberra, 26 April 2006.
Commonwealth Director of Public Prosecutions, The Prosecution Policy of the Commonwealth
<www.cdpp.gov.au/Prosecutions/Policy/Default.aspx> at 11 March 2006, [2.24].
8. Offences Against Political Liberty
143
8.22 Incitement can be seen as analogous to aiding and abetting in the sense that both
forms of liability depend upon doing an act in furtherance of a crime.31 In cases
relating to aiding and abetting, it has been held sufficient for the Crown to establish
that a defendant contemplated the kind or type of crime committed by the principal
offender.32
8.23 In R v Bainbridge, the English Court of Criminal Appeal held that it was not
enough to show that the defendant contemplated that the oxyacetylene equipment he
provided was going to be used to dispose of stolen property, when it was in fact used
for breaking into a bank.33
8.24 At common law, it is unclear whether the broad qualification in Bainbridge
applies to intention as well as to knowledge. That is, whether it is sufficient that ‗the
accessory intended to assist or encourage the commission of a crime of the same type
as that which is actually committed by the perpetrator‘.34 In the Criminal Code, the
complicity and common purpose provisions state expressly that the person must have
intended that his or her conduct would aid, abet, counsel or procure the commission of
any offence of the type the other person committed (emphasis added).35
8.25 In cases of incitement, it may be harder to determine whether the intention that
an offence be committed is sufficiently specific. Contrary to the position in the law of
complicity—where the person ‗ aids, abets, counsels or procures‘ the commission of an
offence36—it is not necessary that the substantive offence be committed.37 Therefore,
there may be no conduct, beyond the incitement itself, which may be referred to in
making this determination.
8.26 A related issue is whether the present sedition offences, or proposed new
offences, should require a closer connection between urging and the commission of
another offence.
31
32
33
34
35
36
37
S Bronitt and B McSherry, Principles of Criminal Law (2005), 433.
Ancuta v The Queen (1990) 49 A Crim R 307, following R v Bainbridge [1960] 1 QB 129. See D Brown
and others, Brown, Farrier, Neal and Weisbrot’s Criminal Laws: Materials and Commentary on
Criminal Law and Process in New South Wales (4th ed, 2006), [11.4.4.2].
R v Bainbridge [1960] 1 QB 129, 133.
S Bronitt and B McSherry, Principles of Criminal Law (2005), 363. The High Court case Giorgianni v
The Queen (1985) 156 CLR 473 may support such a proposition.
Criminal Code (Cth) s 11.2(3).
Ibid s 11.2.
A person may, however, be convicted of incitement where the principal offence has been committed. In
practice, ‗incitement which succeeds in its object will usually result in conviction for the principal
offence as an accomplice‘: I Leader-Elliot, The Commonwealth Criminal Code: A Guide for
Practitioners, Attorney-General‘s Department and Australian Institute of Judicial Administration,
1 March 2002, 271.
144
Review of Sedition Laws
8.27 IP 30 noted concerns about the existing lack of a direct connection.38 For
example, in the course of the Senate Legal and Constitutional Legislation Committee
inquiry into the provisions of the Anti-Terrorism Bill (No 2) 2005 (Cth) (2005 Senate
Committee inquiry),39 the Gilbert and Tobin Centre of Public Law argued that the
absence of a requirement of ulterior intention resulted in criminalising ‗indirect
incitement or generalised expressions of support for terrorism, without any specific
intention to encourage violence or any connection to a particular offence‘. The Centre
submitted that ‗only incitements which have a direct and close connection to the
commission of a specific crime are justifiable restrictions on speech‘.40
8.28 Submissions to this Inquiry made similar points.41 Judge John Goldring submits
that incitement, conspiracy,42 and the extended application of complicity,43 would
cover any possible conduct that should be proscribed. He considers that the
requirement that incitement be specific and intentional should apply to all
Commonwealth offences.44 Fairfax, News Ltd and AAP submit that the sedition
offences should include a ‗rider‘, similar to that in s 11.4(2) of the Criminal Code.45
ALRC’s views
8.29 The ALRC considers that, despite the many alternative substantive offences, the
ancillary offence of incitement cannot cover all conduct proscribed by the existing
sedition offences—because incitement requires an ulterior intention that the offence
incited be committed. The sedition offences cannot, therefore, be considered
unnecessary simply on the ground that much of the conduct proscribed by them
constitutes incitement to commit other offences.
8.30 There was a deliberate policy decision to retain a distinction between ‗urging‘
for purposes of the sedition offence and incitement. The new sedition offences were
framed to avoid any need for a connection between urging and a specific terrorist act or
other crime.46 A central rationale for the sedition offences is that this particular form of
38
39
40
41
42
43
44
45
46
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), [3.106]–[3.107].
See, Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the AntiTerrorism Bill (No 2) 2005 (2005), [5.117]–[5.122].
Gilbert & Tobin Centre of Public Law, Submission 80 to Senate Inquiry into Anti-Terrorism Bill (No 2)
2005, 10 November 2005. Other submissions made similar criticisms: Senate Legal and Constitutional
Committee—Parliament of Australia, Provisions of the Anti-Terrorism Bill (No 2) 2005 (2005), [5.105]–
[5.106]; Human Rights and Equal Opportunity Commission, Submission 158B to Senate Inquiry into
Anti-Terrorism Bill (No 2) 2005, 22 November 2005. See also B Saul, ‗Speaking of Terror: Criminalising
Incitement to Violence‘ (2005) 28 University of New South Wales Law Journal 868, 881.
See, eg, J Goldring, Submission SED 21, 5 April 2006; John Fairfax Holdings Ltd, News Limited and
Australian Associated Press, Submission SED 56, 18 April 2006; Chief Minister (ACT), Submission SED
44, 13 April 2006.
Criminal Code (Cth) s 11.5.
Ibid s 11.2.
J Goldring, Submission SED 21, 5 April 2006.
John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006.
They do not differ in this respect from the repealed sedition offences in the Crimes Act.
8. Offences Against Political Liberty
145
‗urging‘ presents such serious risks to public safety and the body politic that it should
be punishable without the need to prove an intention that a specific offence be
committed by another. The harm addressed relates to the creation of an environment in
which the likelihood of force or violence being used for the proscribed purposes is
increased. Calls to ‗use whatever force or violence it takes to bring down the
Government‘, for example, may be hard to match up with incitement to commit a
specific offence. The view is that an intention to urge force or violence in these
circumstances should be sufficient, without the need for further proof of intention with
regard to the commission of a specific offence.
8.31 This justification for the offences relies on their coverage of general
exhortations to use force or violence for broadly political or anti-social ends. The
ALRC does not, therefore, consider that the offences should require that the person
have an ‗ulterior intention‘, or purpose directed to the commission of a specific offence
by another person.
8.32 However, while the operation of the offences in s 80.2 should be less
constrained than in the case of incitement, the ALRC considers that there should be a
more concrete link between the offences in s 80.2 and force or violence. The ALRC
proposes that for the person to be guilty of the offences, he or she should intend that
the force or violence urged will occur. This requirement will help remove from the
ambit of the offences rhetorical statements that the person does not intend anyone will
act upon. At the same time, this ‗ulterior intention‘ falls short of that required to prove
incitement.
Proposal 8–1
Section 80.2 of the Criminal Code (Cth) (Criminal Code)
should be amended to provide that, for a person to be guilty of any of the
offences under s 80.2, the person must intend that the urged force or violence
will occur.
(The relevant sections of the Criminal Code, amended as proposed, are set out
in Appendix 2.)
Fault elements
8.33 There has been considerable confusion over the fault elements required under
the sedition provisions, much of which appears to proceed from a misunderstanding of
the construction of criminal responsibility under the Criminal Code.47 The report of the
47
See Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), [3.21], [3.30]–[3.31].
146
Review of Sedition Laws
2005 Senate Committee inquiry recommended that ‗all offences in proposed section
80.2 should be amended to expressly require intentional urging‘.48
Fault elements under the Criminal Code
8.34 Under the Criminal Code, an offence consists of physical elements and fault
elements.49 In order for a person to be found guilty of committing an offence, each of
the following must be proved by the prosecution beyond reasonable doubt:
(a) the existence of such physical elements as are, under the law creating the
offence, relevant to establishing guilt;
(b) in respect of each such physical element for which a fault element is required,
one of the fault elements for the physical element.50
8.35 Under s 5.1(1) of the Criminal Code, the possible fault elements ‗may be
intention, knowledge, recklessness or negligence‘. The policy behind the provision is
to standardise, to the extent possible, the fault elements used in federal criminal law.
However, Parliament is not prevented from enacting a law that specifies other fault
elements for a physical element of an offence where that is seen to be desirable, and
the language used is clear and express.
8.36 Section 5.2 of the Criminal Code defines ‗intention‘ as follows:
(1) A person has intention with respect to conduct if he or she means to engage in that
conduct.
(2) A person has intention with respect to a circumstance if he or she believes that it
exists or will exist.
(3) A person has intention with respect to a result if he or she means to bring it about
or is aware that it will occur in the ordinary course of events.
8.37 Section 5.4 of the Criminal Code defines ‗recklessness‘ as follows:
(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will
exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to
take the risk.
(2) A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to
take the risk.
48
49
50
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [5.176], rec 29.
Criminal Code (Cth) s 3.1.
Ibid s 3.1.
8. Offences Against Political Liberty
147
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of
intention, knowledge or recklessness will satisfy that fault element.
8.38 It is important to note that ‗recklessness‘ under the Criminal Code has a precise
meaning—and one that differs from its use in common parlance, where it is roughly
interchangeable with ‗negligence‘ or perhaps ‗serious negligence‘. As a term of art in
Australian criminal law, recklessness is much closer to intentionality, requiring that the
person consciously consider the substantial and unjustifiable risks involved, and
nevertheless proceed with the conduct.
8.39 Under the Criminal Code, if the legislation creating an offence makes no
reference to fault when specifying a physical element of an offence, then either
intention or recklessness (depending upon the circumstances) will apply by default.
Section 5.6 of the Criminal Code provides that (emphasis supplied):
(1) If the law creating the offence does not specify a fault element for a physical
element that consists only of conduct, intention is the fault element for that physical
element.
(2) If the law creating the offence does not specify a fault element for a physical
element that consists of a circumstance or a result, recklessness is the fault element
for that physical element.
Fault elements and the sedition offences
8.40 It can be difficult in practice to separate the physical elements of an offence into
‗conduct‘ on the one hand, and a ‗circumstance‘ or ‗result‘ on the other.51 In the case of
the sedition offences, questions arise about whether the physical elements of the
offence comprise ‗conduct‘ only, or ‗conduct‘ plus one or more ‗circumstances‘ or
‗results‘.
8.41 The construction given to these provisions by the AGD appears to be that the
physical elements of the sedition offences (except for those to which recklessness is
expressly applied)52 comprise conduct only—and, therefore, intention is the fault
element.53 That is, the physical elements of the offence are not divisible into conduct
and a circumstance or result.
8.42 However, as confirmed by submissions to the Inquiry, it is plausible to view the
physical elements of the sedition offences as divisible into conduct and one or more
51
52
53
See I Leader-Elliot, The Commonwealth Criminal Code: A Guide for Practitioners, Attorney-General‘s
Department and Australian Institute of Judicial Administration, 1 March 2002, 97–115.
That is, under Criminal Code (Cth) s 80.2(2), (4) and (6).
Australian Government Attorney-General‘s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005. See also Senate Legal and Constitutional Committee—
Parliament of Australia, Provisions of the Anti-Terrorism Bill (No 2) 2005 (2005), [5.107]–[5.112].
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Review of Sedition Laws
circumstances or results.54 If the physical elements are divisible, a person need only be
reckless as to whether the conduct (the urging) occurs in particular circumstances or
leads to particular results (for example, the use of force of violence).
8.43 Three of the sedition offences expressly contain recklessness as a fault element,
but only in relation to some of the physical elements required to constitute the
offence—that is, the circumstances or results arising from the person‘s ‗urging‘: the
fact that it is the Constitution or Government that others have been urged to
overthrow;55 the fact that it is the lawful processes of a Parliamentary election that
others have been urged to interfere with;56 or the fact that it is a group distinguished by
race, religion, nationality or political opinion that others have been urged to use force
or violence against.57
8.44 Some submissions also criticised the express application of recklessness as the
fault element for some elements of the sedition offences.58 In particular, it is argued
that it is hard to understand how a person could intend to urge a person to, for example,
overthrow the Government by force or violence, but only be reckless as to whether the
entity to be overthrown was, in fact, the Government.59 The application of recklessness
also was criticised for being inconsistent with recommendations of the Model Criminal
Code Officers Committee (MCCOC), which expressed concern in 1992 that
‗recklessness in incitement was too great a threat to free speech‘.60
ALRC’s views
8.45 The ALRC considers that the technical construction given to the offences in
s 80.2(1), (3) and (5) by the AGD is correct.61 However, in IP 30, the ALRC suggested
that there nevertheless may be value in putting the matter beyond doubt by stating that
all of the offences involve intentional urging of the use of force or violence. The
suggestion that the application of the fault elements should be clarified received broad
support in submissions.62
54
55
56
57
58
59
60
61
62
John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006; A Steel, Submission SED 23, 18 April 2006; B Saul, Submission SED 52, 14 April 2006.
Criminal Code (Cth) s 80.2(2).
Ibid s 80.2(4).
Ibid s 80.2(6).
J Pyke, Submission SED 18, 10 April 2006; Chief Minister (ACT), Submission SED 44, 13 April 2006;
Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006.
J Pyke, Submission SED 18, 10 April 2006.
Chief Minister (ACT), Submission SED 44, 13 April 2006. See Model Criminal Code Officers
Committee, Model Criminal Code: Chapters 1 and 2: General Principles of Criminal Responsibility
(1992), 97.
No similar issue arises in the case of the offences in s 80.2(7) and (8). These provisions do not refer to
urging force or violence, but simply to urging another person to ‗engage in conduct‘, to which intention
will clearly apply as the fault element: Criminal Code Act 1995 (Cth) s 80.2(7)(a); 80.2(8)(a); and state
expressly that the person ‗intends the conduct to assist an organisation or country‘: Criminal Code Act
1995 (Cth) s 80.2(7)(b); 80.2(8)(b) (emphasis added).
Human Rights Lawyers, Consultation, Sydney, 29 March 2006; National Association for the Visual Arts,
Submission SED 30, 11 April 2006; National Legal Aid, Submission SED 62, 20 April 2006; Centre for
8. Offences Against Political Liberty
149
8.46 Even assuming that the application of the general principles of criminal
responsibility in the Criminal Code to the sedition offences is reasonably clear,63 there
are arguments that the applicable fault elements should be stated expressly in any new
offences drafted to replace them.
8.47 As discussed elsewhere in this Discussion Paper, where interests in freedom of
speech and expression are constrained by criminal sanctions, community perceptions
about the law are especially important. Submissions to the Inquiry emphasised the
importance of clarity in promoting community understanding of the law.64
8.48 It would not be inconsistent with the way in which the Criminal Code is drafted
to state that a person commits an offence if he or she ‗intentionally urges‘ the conduct
referred to in s 80.2. There are many other offence provisions in the Code that follow
this model, including those where, arguably, it is clear that intention is the fault
element by virtue of the operation of s 5.6.65
8.49 For example, under s 72.3(1) of the Criminal Code a person commits an offence
if the person ‗intentionally‘ delivers, places, discharges, or detonates an explosive or
lethal device; under s 102.2(1) a person commits an offence if the person
‗intentionally‘ directs the activities of a terrorist organisation; under s 102.3(1)
a person commits an offence if the person ‗intentionally‘ is a member of an terrorist
organisation; under s 102.4(1) a person commits an offence if the person ‗intentionally‘
recruits a person to join a terrorist organisation; under s 102.5(1) a person commits an
offence if the person ‗intentionally‘ provides training for terrorism.
Other drafting issues
The meaning of ‘urges’
8.50 The offences in s 80.2 of the Criminal Code provide that a person commits an
offence if the person ‗urges‘ another person to engage in the proscribed conduct.66 The
term ‗urges‘ is not defined in the Criminal Code and, in the course of the 2005 Senate
Committee inquiry, concerns were expressed about the broad scope of the term.67
63
64
65
66
67
Media and Communications Law, Submission SED 32, 12 April 2006; Australian Muslim Civil Rights
Advocacy Network, Submission SED 54, 17 April 2006.
As submitted by the AGD: Australian Government Attorney-General‘s Department, Submission SED 31,
12 April 2006.
Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006; N Roxton
Shadow Attorney-General, Submission SED 63, 28 April 2006.
See, eg, Criminal Code (Cth) ss 102.6 (1); 102.7 (1); 102.8(1)(a)(i); 270.3 (1); 471.7(2)(a).
Criminal Code Act 1995 (Cth) s 80.2(1), (3), (5), (7), (8).
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [5.95].
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Review of Sedition Laws
Urging involves a person endeavouring to induce or persuade, as by entreaties or
earnest recommendations; to recommend or advocate earnestly. This is far broader
than the better term ‗incitement‘ which embraces such terms as to ‗spur on, stir up,
prompt to action, instigate or stimulate‘.68
8.51 The ALRC has received similar comments.69 ARTICLE 19, an international
human rights organisation, submitted that to ‗incite‘ would be a preferable term
because:
Not only is the language of incitement recognised under international standards as the
threshold for restricting freedom of expression, the lay usage of the term ‗incite‘,
rather than ‗urge‘ recognises the implicit connection with unlawful behaviour or
violence.70
8.52 Others expressed concerns about the uncertainty of the concept of urging,71 its
inherent subjectivity, and the difficulty in determining whether
when an opinion is expressed or a comment made which, by the manner in which it is
made, might be one which in a particular context had sufficient forcefulness in its
manner, delivery or content to evidence the act of urging.72
8.53 As discussed above, under the Criminal Code, the conduct element of
incitement is to ‗urge‘ another person or persons to commit an offence. The 1992
MCCOC report on principles of criminal responsibility noted that differing verbs had
been employed in relevant Australian and overseas legislation dealing with incitement
‗with little consideration of what the differences, if any, might be‘.73 For example, the
Crimes Act incitement provisions used the words ‗incites to, urges, aids or
encourages‘.74 MCCOC expressed concern that some courts have interpreted ‗incites‘
as requiring causing rather than advocating the offence.75 MCCOC stated that using the
word ‗urges‘ would avoid this ambiguity.76
68
69
70
71
72
73
74
75
76
Liberty Victoria, Submission 221 to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 11 November
2005.
ARTICLE 19, Submission SED 14, 10 April 2006; Combined Community Legal Centres Group (NSW)
Inc, Submission SED 50, 13 April 2006.
ARTICLE 19, Submission SED 14, 10 April 2006.
N Roxton Shadow Attorney-General, Submission SED 63, 28 April 2006.
Chief Minister (ACT), Submission SED 44, 13 April 2006. See also Australian Muslim Civil Rights
Advocacy Network, Submission SED 54, 17 April 2006.
Model Criminal Code Officers Committee, Model Criminal Code: Chapters 1 and 2: General Principles
of Criminal Responsibility (1992), 95.
Crimes Act 1914 (Cth), s 7A (repealed).
However, the case law does not clearly establish that the term ‗urges‘ is broader than other terms used to
describe incitement. Laws of Australia states that the words ‗urges‘ and ‗encourages‘ are synonyms for
‗incites‘: Law Book Company, The Laws of Australia, vol 9 Criminal Law Principles, [122]. The word
‗procures‘—sometimes also treated as a synonym of ‗incites‘—has in some cases been given a meaning
that makes it equivalent to ‗cause‘: Law Book Company, The Laws of Australia, vol 9 Criminal Law
Principles, [122] citing A-G (UK) Reference (No 1 of 1975) [1975] QB 773.
Model Criminal Code Officers Committee, Model Criminal Code: Chapters 1 and 2: General Principles
of Criminal Responsibility (1992), 95.
8. Offences Against Political Liberty
151
8.54 Consistently with MCCOC‘s advice, s 11.4(1) of the Criminal Code provides
that a person ‗who urges the commission of an offence is guilty of the offence of
incitement‘:
The restriction of liability to circumstances in which the defendant ‗urges‘ the
commission of an offence narrows the common law, which traditionally imposed
liability for incitement when the offender ‗counsels, commands or advises‘ the
commission of an offence. The Code formulation was intended to emphasise the
necessity for proof that the activity of the defendant was meant to encourage the
commission of the offence.77
8.55 The AGD stated that this term was adopted by the drafters of the Criminal Code
sedition provisions for similar reasons and for internal consistency.78 It makes sense for
the language to be consistent with the incitement provisions of the Criminal Code—in
the ALRC‘s view there is no reason to change the existing terminology in this regard.
Force or violence
8.56 Another set of concerns expressed to the Inquiry relates to the words ‗force or
violence‘, used in s 80.2(1), (3) and (5). Neither term is defined in the Criminal Code.
It has been suggested that the meaning of ‗force or violence‘ for the purposes of the
sedition offences is unclear and too broad.79
8.57 ARTICLE 19 observes that:
‗force‘ is a broad term which is not restricted to ‗imminent violence‘. Indeed, ‗force‘
could encompass a broad range of non-violent activity. In conjunction with the
problematic term ‗urges‘, a person could encourage a person to act to lobby or picket
against policies of the government, which could be considered ‗force‘ and should not
be prohibited.80
8.58 The Federation of Community Legal Centres (Vic) expresses concern that the
provisions do not specify that the force used must be physical force, so that many of
the strategies and techniques of activists and protestors may be encompassed by the
term.81
77
78
79
80
81
I Leader-Elliot, The Commonwealth Criminal Code: A Guide for Practitioners, Attorney-General‘s
Department and Australian Institute of Judicial Administration, 1 March 2002, 271–273.
Australian Government Attorney-General‘s Department, Submission 290 to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 16 November 2005.
ARTICLE 19, Submission SED 14, 10 April 2006.
Ibid.
Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006. See also B Saul,
Submission SED 52, 14 April 2006; A Steel, Submission SED 23, 18 April 2006.
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Review of Sedition Laws
8.59 The ALRC is not convinced that there is any clearly preferable alternative to the
words ‗force or violence‘. While the term as a whole is not used elsewhere in the
Criminal Code, there are many uses of the words ‗force‘ and ‗violence‘, notably in
provisions relating to genocide, crimes against humanity and war crimes.82
Reasonable likelihood of violence
8.60 There was support, in submissions and consultations, for the idea that, if the
sedition offences are retained, there should be some requirement that force or violence
is reasonably likely to occur as a result of the offending conduct.83 For example,
Dr Saul stated that only ‗incitements which have a direct and close connection to the
commission of a specific crime are justifiable restrictions on speech‘.84 Dr Saul and
others85 referred to the United States case of Brandenburg v Ohio.86
8.61 In Brandenburg, the United States Supreme Court confirmed that constitutional
guarantees of free speech and free press do not permit a State ‗to forbid or proscribe
advocacy of the use of force or of law violation except where such advocacy is directed
to inciting or producing imminent lawless action and is likely to incite or produce such
action‘.87 Dr Saul submits that:
The twin requirements of the imminence and likelihood (or probability) of crime
ensure that speech is not prematurely restricted; there must be a sufficiently proximate
connection or causal link between the advocacy and the eventuality of crime.88
8.62 Similar points were made by others. For example, Australian Lawyers for
Human Rights recommends that s 80.2 be redrafted so that in order for ‗urging‘ to
constitute an offence, it be ‗intended to incite imminent violence, be likely to do so and
there is a direct and immediate connection between the urging and the likelihood or
occurrence of such violence‘.89 ARTICLE 19 stated that the concept of urging force
‗does not properly reflect the necessary link between the prohibited speech and a risk
of imminent violence which justifies the prohibition in terms of national security‘.90
82
83
84
85
86
87
88
89
90
Criminal Code (Cth) Ch 8.
L Maher, Consultation, Melbourne, 4 April 2006; University of Melbourne Academics, Consultation,
Melbourne, 5 April 2006; Australian Lawyers for Human Rights, Submission 139 to Senate Inquiry into
Anti-Terrorism Bill (No 2) 2005, 11 November 2005; ARTICLE 19, Submission SED 14, 10 April 2006;
B Saul, Submission SED 52, 14 April 2006.
B Saul, Submission SED 52, 14 April 2006.
L Maher, Consultation, Melbourne, 4 April 2006; University of Melbourne Academics, Consultation,
Melbourne, 5 April 2006.
Brandenburg v Ohio 395 US 444 (1969).
Ibid, 447.
B Saul, Submission SED 52, 14 April 2006.
Australian Lawyers for Human Rights, Submission SED 47, 13 April 2006, referring to International
Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally
on 23 March 1976) art 19 and Johannesburg Principles on National Security, Freedom of Expression and
Access to Information (1995) <http://www.article19.org/pdfs/standards/joburgprinciples.pdf> at 20 April
2006 art 6.
ARTICLE 19, Submission SED 14, 10 April 2006.
8. Offences Against Political Liberty
153
8.63 Introducing such a requirement could provide an additional protection for
interests in freedom of speech and expression without imposing any burden on the
prosecution to make a connection between the conduct and any particular offence or
act. The prosecution would only need to point to a category of force or violence that is
reasonably likely to be encouraged. On the other hand, it may be difficult, in practice,
for the prosecution to show a reasonable likelihood of force or violence. Expert
sociological or other evidence may be required. The suggested requirement would
provide additional protection for a defendant only where the defendant intended to urge
force or violence.
8.64 The ALRC considers that the proposal to require that, for the purposes of the
s 80.2 offences, the person must intend that the urged force or violence will occur
(Proposal 8–1) adequately addresses the concerns expressed about the need for a closer
connection between the urging and the increased likelihood of violence eventuating.
Urging the overthrow of the Constitution or Government
8.65 The first of the present offences deals with urging the overthrow of the
Constitution or Government. Section 80.2(1) states that:
(1) A person commits an offence if the person urges another person to overthrow by
force or violence:
(a)
the Constitution; or
(b)
the Government of the Commonwealth, a State or a Territory; or
(c)
the lawful authority of the Government of the Commonwealth.
Framing the provision
8.66 A range of concerns are expressed in relation to the framing of s 80.2(1).
Questions are raised about the abstract and vague nature of some of its terms. For
example, what does it mean to ‗overthrow‘ the Constitution by force or violence91—
especially given that ‗the Constitution‘ is a legal concept rather than a physical
institution? One view is that:
overthrowing connotes a physical act and that the use of the term in relation to the
overthrow of regimes is a metaphorical use of the word. It is not appropriate to
determine criminal liability with metaphors.92
8.67 To what extent must the ‗lawful authority‘ of the Government be challenged? Is
it sufficient that force or violence be urged to resist one or more specific laws, or must
there be a more general challenge to the legitimacy of the Government?93
91
92
93
M Weinberg, Consultation, Melbourne, 3 April 2006; A Steel, Submission SED 23, 18 April 2006.
A Steel, Submission SED 23, 18 April 2006.
University of Melbourne Academics, Consultation, Melbourne, 5 April 2006; P Emerton, Submission
SED 36, 10 April 2006.
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Review of Sedition Laws
8.68 Patrick Emerton notes that the 1991 recommendations of the Committee of
Review of Commonwealth Criminal Law (Gibbs Committee) refer to ‗the lawful
authority of [the Government of the Commonwealth] in respect of the whole or part of
its territory‘ (emphasis added).94 Emerton submits that, in contrast:
One disturbing feature of [s 80.2(1)] is the vagueness of ‗lawful authority of the
Commonwealth‘. Is it sufficient to constitute the overthrowing of this that the
execution of one law be prevented? If so, then we have a manifestly excessive
intrusion on political dissent.95
ALRC’s views
8.69 As discussed in Chapter 2, s 80.2(1) is not best characterised as a sedition
offence. It does not proscribe conduct that, in terms of the old definition of seditious
intention, tends to bring the Sovereign into hatred or contempt, or to excite disaffection
against the Constitution or Government. Rather, it criminalises conduct that encourages
the use of force or violence against constituent elements of democratic government in
Australia. For this reason it is better characterised as an offence against political
liberty.
8.70 The ALRC considers that an offence based on the present s 80.2(1) should be
retained in the Criminal Code and headed ‗Urging the overthrow by force or violence
of the Constitution or Government‘ (see Proposal 8–2). This offence should retain the
current wording but should state in relevant part that ‗a person commits an offence if
the person intentionally urges another person to overthrow by force or violence …‘.96
8.71 The ALRC considers that, even assuming that the application of s 5.6 of the
Criminal Code to this offence is clear, the applicable fault element should be stated
expressly in the offence. This amendment is in addition to Proposal 8–1, which would
add an ‗ulterior intention‘—that is, an intention to achieve an objective which is not a
physical element of the offence—in respect to which the meaning of intention is
determined by ordinary usage and common law.97
8.72 A number of other criticisms may be levelled at the present framing of s 80.2(1).
However, the ALRC is not convinced that the section can be significantly improved
without introducing other broad concepts as alternatives or adding unwarranted
complexity. The terms ‗Constitution‘ and ‗Government‘ have been used in sedition
offences since 1920. The concept of advocating the ‗overthrow‘ of the Constitution or
94
95
96
97
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [31.18].
P Emerton, Submission SED 36, 10 April 2006.
Recklessness would still apply to the element that it is the Constitution or Government that others have
been urged to overthrow: Criminal Code (Cth) s 80.2(2).
I Leader-Elliot, The Commonwealth Criminal Code: A Guide for Practitioners, Attorney-General‘s
Department and Australian Institute of Judicial Administration, 1 March 2002, 61.
8. Offences Against Political Liberty
155
the Government has existed since 1926.98 Other elements of the drafting of the s 80.2
offences were recommended by the Gibbs Committee.99
8.73 The Australian Government and the DPP appear to accept that there are
difficulties for the prosecution in interpreting and applying the words of the offence
and in proving these matters beyond reasonable doubt—but do not propose any
alternative formulation. The ALRC does not consider that there would be any value in,
for example, substituting the phrase ‗the institutions of democratic government‘ for
references to the Constitution or Government. Alternative formulations along these
lines inevitably would face similar problems of interpretation and application to those
that already exist.
8.74 There is a significant overlap between the offence in s 80.2(1) and other
offences in the Criminal Code, Crimes Act and elsewhere. Many submissions
suggested that the sedition offence provisions should be repealed on this basis.100
However, as discussed above, there are important differences between ‗urging‘ under
s 80.2 and incitement under s 11.4 of the Criminal Code. These mean that, despite the
number of alternative substantive offences, the ancillary offence of incitement cannot
cover all conduct proscribed by the existing sedition offences.
8.75 An exception is the offence in s 30C of the Crimes Act, entitled ‗Advocating or
inciting to crime‘,101 which covers almost identical ground. Section 30C provides that:
Any person who by speech or writing advocates or encourages:
(a)
the overthrow of the Constitution of the Commonwealth by revolution or
sabotage;
(b)
the overthrow by force or violence of the established government of the
Commonwealth or of a State or of any other civilized country or of
organized government; or
(c)
the destruction or injury of property of the Commonwealth or of property
used in trade or commerce with other countries or among the States;
shall be guilty of an offence and shall be liable on conviction to imprisonment
for any period not exceeding 2 years.
8.76 The ALRC proposes that s 30C of the Crimes Act be repealed. Repeal need not
await the outcome of the review of offences in Part II and Part IIA of the Crimes Act
98
99
100
101
Crimes Act 1914 (Cth) s 30C inserted by Crimes Act 1926 (Cth) s 17.
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991), [32.18].
Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006; Liberty Victoria,
Submission 221 to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 11 November 2005; P Emerton,
Submission SED 36, 10 April 2006.
Located in Crimes Act 1914 (Cth) Pt IIA (‗Protection of the Constitution and of public and other
services‘).
156
Review of Sedition Laws
(see Proposals 4–1 and 11–2). Consistently with Criminal Code harmonisation policy,
this review will involve modernising some offences for re-enactment in the Criminal
Code, and the repeal of others. However, because s 30C is clearly redundant there is no
need to save it for such a review.
Proposal 8–2
The heading of s 80.2(1) of the Criminal Code should be
changed to refer to urging the overthrow by ‗force or violence‘ of the
Constitution or Government.
Proposal 8–3
The word ‗intentionally‘ should be inserted in s 80.2(1) of
the Criminal Code before the word ‗urges‘ to clarify the fault element applicable
to urging the use of force or violence.
Proposal 8–4
Section 30C of the Crimes Act 1914 (Cth), concerning
‗advocating or inciting to crime‘, should be repealed.
(The relevant sections of the Criminal Code, amended as proposed, are set out
in Appendix 2.)
Urging interference in Parliamentary elections
8.77 The second of the present sedition offences deals with urging interference by
force or violence in Parliamentary elections. Section 80.2(3) states that:
A person commits an offence if the person urges another person to interfere by force
or violence with lawful processes for an election of a member or members of a House
of the Parliament.
8.78 The Commonwealth Electoral Act 1918 (Cth) defines ‗election‘ as ‗an election
of a member of the House of Representatives or an election of senators for a State or
Territory‘.102
Related offences
8.79 As in the case of s 80.2(1), there is some overlap between the offence in
s 80.2(3) and other offences, and submissions suggested that the offence should
repealed on this basis. Most significantly, s 28 of the Crimes Act creates an offence,
punishable by three years imprisonment, entitled ‗Interfering with political liberty‘.
The section states:
Any person who, by violence or by threats or intimidation of any kind, hinders or
interferes with the free exercise or performance, by any other person, of any political
right or duty, shall be guilty of an offence.
102
Commonwealth Electoral Act 1918 (Cth) s 287(1).
8. Offences Against Political Liberty
157
8.80 Section 327(1) of the Commonwealth Electoral Act 1918 (Cth) creates a lesser
summary offence, punishable by six months imprisonment, entitled ‗Interference with
political liberty etc‘. This offence does not refer to the use of force, violence, threats or
intimidation. It states:
A person shall not hinder or interfere with the free exercise or performance, by any
other person, of any political right or duty that is relevant to an election under this
Act.
8.81 The Referendum (Machinery Provisions) Act 1984 (Cth) provides a parallel
regulatory system for conducting referenda under the authority of the Australian
Electoral Commission (AEC). A referendum is defined as: ‗the submission to
the electors of a proposed law for the alteration of the Constitution‘. Section 120
creates a summary offence, punishable by six months imprisonment, entitled
‗Interference with political liberty‘. The section states:
A person shall not hinder or interfere with the free exercise or performance, by any
other person, of any political right or duty that is relevant to a referendum under this
Act.
8.82 The AEC also administers elections for the Torres Strait Regional Authority
(TSRA) under Division 5 of the Aboriginal and Torres Strait Islander Act 2005 (Cth)
and secret ballots under Division 4 of the Workplace Relations Act 1996 (Cth). Both
Acts contain a number of offences relating to interference in the conduct of such
elections and ballots.103
ALRC’s views
8.83 Again, s 80.2(3) is better characterised as an offence against political liberty
than as a sedition offence (see Proposal 2–1). The ALRC concludes that an offence
based on s 80.2(3) should be retained in the Criminal Code and entitled ‗Urging
interference in Parliamentary elections by force or violence‘.
8.84 Urging interference in elections by force or violence is as much a threat to the
constituent elements of democratic government as the conduct proscribed by s 80.2(1),
and should also be punishable. As is the case with the offence in s 80.2(1), the
applicable fault element should be stated expressly in the offence. The offence should
state in relevant part that ‗a person commits an offence if the person intentionally urges
another person to interfere …‘.104 New s 80.2(7) will also apply—to require that the
person intends that the force or violence urged will occur (see Proposal 8–1).
103
104
See, eg, Aboriginal and Torres Strait Islander Act 2005 (Cth) s 198(3); Workplace Relations Act 1996
(Cth) s 821(2).
Recklessness would still apply to the element that it is the Constitution or Government that others have
been urged to overthrow: Criminal Code (Cth) s 80.2(2).
158
Review of Sedition Laws
8.85 The ALRC considers that the logic behind the provision means that it should
cover constitutional referenda as well as parliamentary election processes. There is,
however, no reason to include TSRA elections or workplace ballots, which are far less
‗national‘ or central to the protection of democratic institutions (and are subject to
specific and targeted offences). Section 80.2(4) also should be amended in a consistent
manner, to refer to constitutional referenda.
8.86 The offence in s 28 of the Crimes Act covers similar ground to that in s 80.2(3)
of the Criminal Code. It is wider, in that it refers to interference with any ‗political
right or duty‘,105 and narrower, in that incitement of the offence requires an intention
that the offence incited be committed.106 Section 28 should be reviewed as part of the
proposed review of offences in Part II and Part IIA of the Crimes Act (see Proposals 4–
1 and 11–2).
Proposal 8–5
The heading of s 80.2(3) of the Criminal Code should be
changed to refer to urging interference in Parliamentary elections by ‗force or
violence‘.
Proposal 8–6
Section 80.2(3) of the Criminal Code should be amended to:
•
insert the word ‗intentionally‘ before the word ‗urges‘, to clarify the fault
element applicable to urging the use of force or violence; and
•
apply to interference with the lawful processes for a referendum on a
proposed law for the alteration of the Constitution.
Proposal 8–7
As a consequence of Proposal 8–6, s 80.2(4) of the Criminal
Code should be amended to apply recklessness to the element of the offence
under s 80.2(3) that it is lawful processes for a referendum on a proposed law
for the alteration of the Constitution that a person urges another to interfere
with.
(The relevant sections of the Criminal Code, amended as proposed, are set out
in Appendix 2.)
Urging a person to assist the enemy
8.87 Sections 80.2(7) and (8) are significantly different from the other three offences
in that they do not require that a person urge the use of force or violence. These
105
106
This could, for example, include the implied constitutional right of freedom of political communication.
Under Criminal Code (Cth) s 11.4(2).
8. Offences Against Political Liberty
159
sections make it an offence for a person to urge another person to engage in conduct
intended to ‗assist‘ the enemy or those engaged in armed hostilities against the ADF.
8.88 Submissions to the 2005 Senate Committee inquiry argued that these provisions
were not a mere update of existing laws, but represented two completely new offences
that ‗considerably expand existing sedition laws‘.107 Further, the provisions were said
to conflict with 1991 recommendations of the Gibbs Committee.108 The Gibbs
Committee recommended the enactment of three sedition offences, each of which
required the incitement of force or violence.109
8.89 The AGD did not accept that the offences were new, but argued that they were
‗clearly contemplated‘ by the repealed Crimes Act sedition provisions. The AGD‘s
view was based on the fact that Crimes Act s 24F(1) created an exception to the
offences for certain acts done in good faith and s 24F(2) provided that an act or thing
done with intent to assist an enemy or those engaged in armed hostilities against the
ADF is not done in good faith.110 Submissions to this Inquiry challenged the AGD‘s
view that the offences are not new.111
The meaning of ‘assist’
8.90 The word ‗assist‘ is not defined. In the context of criminal law, someone who
‗aids, abets, counsels or procures‘ the commission of an offence may be guilty of an
offence under the complicity provisions of the Criminal Code.112 These categories of
conduct are forms of assistance, albeit direct in nature. However, at the other end of the
range of interpretation, to ‗assist‘ might encompass mere intellectual or moral
‗support‘.
8.91 IP 30 noted that, on this basis, it could be argued that to urge another to assist an
organisation ‗would conceivably extend to providing verbal support or encouragement
for insurgent groups who might encounter the ADF which is present in their
country‘.113 Further, s 80.2(7) and (8) may apply:
even if Australia invades another country in violation of international law. If opposing
Australian aggression is interpreted as tacit support for its enemies, Australians may
107
108
109
110
111
112
113
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [5.117].
Ibid, [5.117].
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991), 306–307.
Australian Government Attorney-General‘s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005, Attachment A.
Fairfax, News Ltd and AAP submit that the AGD view is to ‗conflate matters of defeasance with
substantive offence provisions‘: John Fairfax Holdings Ltd, News Limited and Australian Associated
Press, Submission SED 56, 18 April 2006.
Criminal Code Act 1995 (Cth) s 11.2.
B Walker, Memorandum of advice to Australian Broadcasting Corporation, 24 October 2005.
160
Review of Sedition Laws
be prosecuted for condemning illegal violence by their government, or for seeking to
uphold the United Nations Charter.114
8.92 Many submissions to the Inquiry express concern about the breadth of the term
‗assist‘ as used in s 80.2(7) and (8).115 Submissions provide numerous examples of
conduct that, it is claimed, might breach these provisions and impose criminal liability:
•
organising an anti-war protest, such as a street rally, calling for the return of
ADF personnel from a war zone;116
•
performing a theatrical production drawing attention to the casualties of war;117
•
showing a documentary which sympathises with or presents the perspective of
insurgents in, for example, Iraq;118
•
encouraging Australian soldiers and their allies to lay down their arms and
refuse to fight;119 and
•
publishing opinion in the media that might be seen to support or lend sympathy
to claims made by armed groups which might encounter the ADF in the course
of peace-keeping operations overseas.120
8.93 Media organisations express particular concern about the possible impact of
s 80.2(7) and (8) on their activities. Fairfax, News Ltd and AAP highlight a range of
media activities that could give rise to conduct seen as urging a person to assist an
enemy.121 For example, it is claimed that the provisions may be breached if third party
commentators make statements supportive of an enemy or those engaged in armed
hostilities with the ADF.122
114
115
116
117
118
119
120
121
122
B Saul, ‗Speaking of Terror: Criminalising Incitement to Violence‘ (2005) 28 University of New South
Wales Law Journal 868, 873.
ARTICLE 19, Submission SED 14, 10 April 2006; Pax Christi, Submission SED 16, 9 April 2006; New
South Wales Bar Association, Submission SED 20, 7 April 2006; Confidential, Submission SED 22,
3 May 2006; Media Entertainment and Arts Alliance, Submission SED 28, 10 April 2006; Centre for
Media and Communications Law, Submission SED 32, 12 April 2006; Federation of Community Legal
Centres (Vic), Submission SED 33, 10 April 2006; P Emerton, Submission SED 36, 10 April 2006; New
South Wales Council for Civil Liberties Inc, Submission SED 39, 10 April 2006; Chief Minister (ACT),
Submission SED 44, 13 April 2006; Australian Press Council Office, Submission SED 48, 13 April 2006;
Australian Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006; Victoria Legal
Aid, Submission SED 43, 13 April 2006; John Fairfax Holdings Ltd, News Limited and Australian
Associated Press, Submission SED 56, 18 April 2006.
Pax Christi, Submission SED 16, 9 April 2006.
Ibid.
Confidential, Submission SED 22, 3 May 2006.
P Emerton, Submission SED 36, 10 April 2006.
John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006.
Ibid.
Ibid.
8. Offences Against Political Liberty
161
The result is that film and television producers, media commentators, leader writers,
editorial cartoonists, journalists or current affairs hosts wishing to participate in,
facilitate or contribute to debate on the topic of ‗terrorism‘ (and indeed a range of far
wider matters) cannot be confident that in so doing they will not risk breaching the
legislation.123
8.94 Submissions highlight many direct and indirect means by which organisations or
countries in conflict with Australia may be ‗assisted‘. Not all of these can reasonably
be seen as justifying criminal sanctions:
It could not, for example, be legitimately said that urging people to send stationery
supplies to the insurgents in Iraq is really deserving of imprisonment for up to
7 years.124
8.95 Some concerns about the breadth of the term ‗assist‘ may be exaggerated. The
AGD submit that the word ‗assist‘ is intended to be interpreted by its ordinary meaning
and includes
taking action to help, contribute, work for or be a servant to or of, support. The
prosecution would need to prove that the assistance provided assistance to the enemy
beyond a reasonable doubt. This would require proving a real contribution.125
8.96 Most of those who made submissions to the Inquiry consider that s 80.2(7) and
(8) should be repealed. If not repealed, the provisions could be narrowed, by defining
the forms of assistance that are prohibited (for example, providing military equipment
or personnel).126
Other issues
8.97 The 2005 Senate Committee report recommended that, if enacted, s 80.2(7) and
(8) should be amended to require a link to force or violence‘.127 Many submissions to
the present Inquiry agreed with this view.128
8.98 Uncertainty is seen to arise from the reference to those ‗engaged in armed
hostilities against the Australian Defence Force‘ under s 80.2(8).129 Judge Goldring
submits that it does not accord with the rule of law for conduct to be criminalised when
123
124
125
126
127
128
129
Ibid.
Australian Lawyers for Human Rights, Submission SED 47, 13 April 2006.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
Pax Christi, Submission SED 16, 9 April 2006.
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [5.175], rec 28.
ARTICLE 19, Submission SED 14, 10 April 2006; National Association for the Visual Arts, Submission
SED 30, 11 April 2006; Centre for Media and Communications Law, Submission SED 32, 12 April 2006;
Victoria Legal Aid, Submission SED 43, 13 April 2006; B Saul, Submission SED 52, 14 April 2006.
J Goldring, Submission SED 21, 5 April 2006; Australian Press Council Office, Submission SED 48,
13 April 2006.
162
Review of Sedition Laws
a person cannot know with certainty whether a given country or organisation falls in
this category.130
8.99 Similar concern is expressed about the reference in s 80.2(7) to those at war with
the Commonwealth ‗whether or not the existence of a state of war has been
declared‘.131 However, the legislation is clear on this point: the organisation or country
must be specified by Proclamation issued by the Governor-General to be an enemy at
war (declared or otherwise) with the Commonwealth.132
Reform of the treason offences
8.100 IP 30 noted the view that s 80.2(7) and (8) are redundant because much of the
conduct proscribed would constitute incitement to commit other offences, such as the
offences of treason and treachery.133 In particular, s 80.1 of the Criminal Code states, in
relevant part:
(1) A person commits an offence, called treason, if the person: …
(e)
(f)
engages in conduct that assists by any means whatever, with intent to
assist, an enemy:
(i)
at war with the Commonwealth, whether or not the existence of a
state of war has been declared; and
(ii)
specified by Proclamation made for the purpose of this paragraph to
be an enemy at war with the Commonwealth; or
engages in conduct that assists by any means whatever, with intent to
assist:
(i)
another country; or
(ii)
an organisation;
that is engaged in armed hostilities against the Australian Defence Force
…
8.101 The Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) also provides
a range of relevant offences. For example, under s 9, it is an offence to recruit another
person to serve with an armed force in a foreign state or to advertise or do any other act
with the intention of facilitating such recruitment.
130
131
132
133
J Goldring, Submission SED 21, 5 April 2006.
Media Entertainment and Arts Alliance, Submission SED 28, 10 April 2006; Australian Press Council
Office, Submission SED 48, 13 April 2006.
Under Criminal Code (Cth) s 80.2(7)(c)(ii).
B Saul, ‗Speaking of Terror: Criminalising Incitement to Violence‘ (2005) 28 University of New South
Wales Law Journal 868, 873.
8. Offences Against Political Liberty
163
8.102 Submissions emphasise the overlap between the offences in s 80.2(7) and (8)
and treason134 and highlighted the fact that many criticisms made about the former
offences apply equally to treason.135 As John Pyke observes, ‗the sedition offence
really cannot be considered separately; the treason, treachery and sedition offences
should be rationalised at the same time, and harmonized‘.136
ALRC’s views
8.103 The ALRC concludes that the offences in s 80.2(7) and (8), and the associated
defence in s 80.2(9), should be repealed. The offences are inappropriately broad. The
breadth of the term ‗assist‘ creates valid concerns that the offences could be interpreted
or applied to proscribe legitimate political protest, and punish merely verbal
encouragement or support for those in conflict with Australian government policy.
8.104 Importantly, these provisions make it an offence to urge conduct by others that
is itself legal. For example, urging people not to enlist for service in the ADF might
constitute the offence if this ‗assists‘ an enemy. While courts are likely to interpret this
provision narrowly, in accordance with the normal restrictive approach to criminal
statutes, there are risks in leaving the provision overly broad and reliant upon judicial
interpretation.
If it was to be interpreted broadly by courts, the provisions could be a very serious
limitation on Australia‘s democratic process. If the concept was interpreted in a more
appropriate and narrow manner, it seems likely that the offences would not be needed,
being covered by other aspects of criminal law such as incitement to treason.137
8.105 Given the similarity of the language used in s 80.2(7) and (8) with that in
s 80.1(1)(e) and (f), aspects of the treason offences must be addressed by this
Inquiry.138
8.106 Treason offences should not encompass strong political dissent and rhetoric
including through media commentary or artistic expression. Such a broad view of
treason calls to mind arguments invoked by United States President Nixon in the
context of anti-Vietnam War protests, that criticism of the war effort amounted to
giving ‗aid and comfort to the enemy‘ in terms of the United States Constitution.139
134
135
136
137
138
139
B Saul, Submission SED 52, 14 April 2006; John Fairfax Holdings Ltd, News Limited and Australian
Associated Press, Submission SED 56, 18 April 2006; Federation of Community Legal Centres (Vic),
Submission SED 33, 10 April 2006; J Pyke, Submission SED 18, 10 April 2006; National Association for
the Visual Arts, Submission SED 30, 11 April 2006; P Emerton, Submission SED 36, 10 April 2006.
B Saul, Submission SED 52, 14 April 2006; National Association for the Visual Arts, Submission SED
30, 11 April 2006; J Pyke, Submission SED 18, 10 April 2006.
J Pyke, Submission SED 18, 10 April 2006.
Centre for Media and Communications Law, Submission SED 32, 12 April 2006.
Reform of these aspects of the treason provisions clearly constitutes a ‗related matter‘ under the Inquiry‘s
Terms of Reference.
Art III, s 3.
164
Review of Sedition Laws
8.107 Rather, s 80.1(1)(e) and (f) should apply only where the person provides
assistance (eg, funds, troops, armaments, intelligence, military strategy) that materially
enables an organisation or country to engage in war against Australia or in armed
hostilities against the ADF. Sections 80.1(1)(e) and (f) are stated not to apply to
‗engagement in conduct by way of, or for the purposes of, the provision of aid of a
humanitarian nature‘.140 Despite this, the provisions are still inappropriately broad.
8.108 The ALRC considers that s 80.1(1)(e) and (f) should be reframed.
Section 80.1(1)(e) should require that the person ‗engages in conduct that materially
assists … an enemy to engage in war with the Commonwealth‘—rather than simply to
assist an enemy (that is engaged in such a war).
8.109 Similarly, s 80.1(1)(f) should state that the person ‗engages in conduct that
materially assists … another country or an organisation to engage in armed hostilities
against the Australian Defence Force‘. In addition, the phrase ‗by any means whatever‘
should be deleted from both subsections,141 and a note added below s 80.1(f)
explaining the intended meaning of the word ‗materially‘.
8.110 Given the proposed alterations to the offence of treason, the ALRC does not
consider that there is any need for a separate, specific provision concerning ‗urging‘
others to assist an enemy or those engaged in armed hostilities against the ADF. As
with the other strands of treason, a prosecution for urging treason should have to rely
on the law of incitement and require an ulterior intention that this very serious offence
be committed.142
8.111 There are other aspects of the treason offences that, while not related directly to
the ALRC‘s Inquiry, have come to attention and should be reviewed. For example,
s 80.1(1)(h) provides a separate ground for treason where a person ‗forms an intention
to do any act referred to in a preceding paragraph and manifests that intention by an
overt act‘.
8.112 The historical antecedents of this provision are clouded, but it may be derived
from a time when the statutory definitions of treason included ‗imagining or
compassing the death of the King‘ under the 1351 Statute of Treasons. As such
offences were concerned with ‗acts of the mind‘, some ‗open or overt act‘ was required
to prove the offence.143 In modern legal terms, the provision shares some
characteristics with the offence of conspiracy, which, under the Criminal Code,
requires the commission of ‗an overt act‘ pursuant to an agreement.144
140
141
142
143
144
Criminal Code (Cth) s 80.1(1A).
Early drafts of the Anti-Terrorism Bill (No 2) 2005 used the words ‗assist, by any means whatever‘ in the
sedition provisions: Draft-in-Confidence Anti-Terrorism Bill (No 2) 2005 (Cth). These were later deleted.
That is, under Criminal Code (Cth) s 11.4(2).
M Black, ‗Five Approaches to Reforming the Law: 650 Years of Treason and Sedition‘ (Paper presented
at Australasian Law Reform Agencies Conference, Sydney, 11 April 2006), 13.
Criminal Code (Cth) s 11.5.
8. Offences Against Political Liberty
165
Section 80.1(1)(h) appears redundant and should probably have been deleted, along
with s 80.1(1A) and 80.1(8), in modernising the offence for enactment in the Criminal
Code. The Gibbs Committee recommended the repeal of the equivalent Crimes Act
provision.145
8.113 The offences and penalties set out in s 80.1(2) also deserve review. These
offences concern allowing another person who has committed treason ‗to escape
punishment or apprehension‘ and not preventing the commission of an offence of
treason by informing a constable or using other reasonable endeavours. In other words,
accessories after the fact to treason and misprision of treason.146 The offences are
punishable by life imprisonment. Arguably, such ancillary offences should be covered
by general provisions dealing with extensions of criminal responsibility,147 and subject
to a lesser penalty than the substantive offence of treason.
Proposal 8–8
Sections 80.2(7), (8) and (9) of the Criminal Code,
concerning the offences of urging a person to assist the enemy and urging a
person to assist those engaged in armed hostilities against the Australian
Defence Force, should be repealed.
Proposal 8–9
to:
The treason offences in s 80.1(1)(e)–(f) should be amended
•
remove the words ‗by any means whatever‘;
•
provide that conduct must ‗materially‘ assist an enemy, making it clear
that mere rhetoric or expressions of dissent are not sufficient; and
•
provide that assistance must enable an enemy ‗to engage in war‘ with
Australia or a country or organisation ‗to engage in armed hostilities‘
against the Australian Defence Force.
Proposal 8–10
The Australian Government should review the treason
offences in s 80.1 of the Criminal Code.
(The relevant sections of the Criminal Code, amended as proposed, are set out
in Appendix 2.)
145
146
147
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991), [31.38].
See Ibid, [31.39]–[31.40].
See, eg, Criminal Code (Cth) Part 2.4; Crimes Act 1914 (Cth) s 6.
166
Review of Sedition Laws
Extraterritorial application
8.114 Common law countries traditionally have based criminal jurisdiction on
considerations of territorial sovereignty. The criminal law was said to apply to all
offences alleged to have occurred within the territorial boundaries of the state or where
the act concerned was intended to have its impact there (such as a fraud procured in
Australia through a communication made from overseas), regardless of the origins of
the alleged offender. Conversely, common law countries traditionally have been loath
to recognise the concept of ‗universal jurisdiction‘ or the extra-territorial reach of
domestic criminal law—except perhaps for a very limited category of serious crimes
with an international flavour, such as piracy or genocide.148
8.115 However, there has been a pronounced modern trend towards extending the
reach of the criminal law across boundaries. In part this was prompted by expanded
territorial claims over the seas and airspace,149 and in part by globalisation and the
increased speed and capabilities of modern transportation and communications
technology. This trend clearly has been accelerated by increased concerns over such
serious transnational crimes as people smuggling, child sex tourism, sexual servitude,
hostage taking and terrorism.
8.116 Even where a country can point to jurisdictional authority in principle, as a
practical matter it must have custody of the alleged offender in order to proceed. This
often will require seeking extradition of the person from another country, usually
pursuant to a treaty.150
8.117 In 2000, Division 15 of the Criminal Code was introduced151 to provide a more
transparent and certain scheme for the geographical jurisdiction of Commonwealth
criminal law. Division 15 provides for four jurisdictional categories (A–D) in ss 15.1–
15.4. Category A is the most limited extension; category D is the broadest.
8.118 The sedition and treason152 offences under Division 80 of the Criminal Code are
characterised as ‗category D‘ offences—as are the terrorism offences created in 2002153
in Divisions 101–104 of the Criminal Code.154 This designation means that, by virtue
of s 15.4 of the Criminal Code, they apply to all persons (whether or not citizens or
residents of Australia):
•
whether or not the conduct constituting the offence occurs in Australia; and
148
149
150
151
152
153
154
D Langham, Cross-Border Criminal Law (1997), 266.
See, eg, Crimes (Ships and Fixed Platforms) Act 1992 (Cth).
Extradition Act 1988 (Cth).
Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth).
Criminal Code (Cth) s 80.1(7).
Security Legislation Amendment (Terrorism) Act 2002 (Cth) sch 1.
Criminal Code (Cth) ss 101.1(2); 101.2(5); 101.4(4); 101.5(4); 101.6(3); 102.9; 103.1(3); 104.8. See also the
discussion below regarding terrorist organisations.
8. Offences Against Political Liberty
•
167
whether or not a result of the conduct constituting the alleged offence occurs in
Australia.
Implications of extra-territorial application
8.119 Concerns are expressed about the application of category D extraterritoriality to
the sedition offences.155 This category of extraterritoriality is said to give rise to the
possibility that the Commonwealth could launch a prosecution against anyone
suspected of these offences, anywhere in the world, ‗creating what is in essence a
universal jurisdiction‘.156 A particular concern is that such a universal jurisdiction
creates a potential conflict with the law on combatant immunity in armed conflict.157
IP 30 asked about the problems raised by the extra-territorial application of the sedition
offences.158
8.120 Submissions highlight a number of problems claimed to result.159 For example,
John Pyke observes that s 80.4, by applying category D jurisdiction to the offences in
Division 80, makes the ‗action of any person of another country who fights against
Australia a criminal offence against our law‘.160 He submits that while there may be
some justification for the laws to apply extraterritorially to Australian citizens, s 80.4
should refer to category A extended jurisdiction, not category D.161
8.121 Pax Christi states that the extended jurisdiction of Division 80 amount to a
‗questionable intrusion into the affairs of another state‘.
It could have the effect that a person domiciled in say Italy who expresses views on
the war in Iraq—for example that Italian forces should be withdrawn—which are
entirely lawful in that country could expose himself or herself to prosecution under
Australian sedition laws on the grounds that such views assist the enemy.162
8.122 Dr Saul also focuses on the implications for s 80.2(7) and (8) of the Criminal
Code and expresses concern that the extra-territorial application of these offences
potentially interferes with the operation of international humanitarian law in armed
155
156
157
158
159
160
161
162
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), [3.53]–[3.54].
B Walker, Memorandum of advice to Australian Broadcasting Corporation, 24 October 2005.
B Saul, ‗Speaking of Terror: Criminalising Incitement to Violence‘ (2005) 28 University of New South
Wales Law Journal 868, 873.
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), Ch 7, Question 14.
J Pyke, Submission SED 18, 10 April 2006; Pax Christi, Submission SED 16, 9 April 2006; Federation of
Community Legal Centres (Vic), Submission SED 33, 10 April 2006; P Emerton, Submission SED 36,
10 April 2006; Victoria Legal Aid, Submission SED 43, 13 April 2006; B Saul, Submission SED 52,
14 April 2006.
J Pyke, Submission SED 18, 10 April 2006.
Ibid. Briefly, under Criminal Code (Cth) s 15.1, where category A jurisdiction applies, jurisdiction will
be satisfied if a requirement for ‗standard geographical jurisdiction‘ (see s 14.1) is met or at the time of
the alleged offence the person charged with the offence was an Australian citizen or was a body corporate
incorporated under Australian law.
Pax Christi, Submission SED 16, 9 April 2006.
168
Review of Sedition Laws
conflicts. He states that, under these laws commanders of enemy forces who order their
troops to attack Australian forces in armed conflicts outside Australia may be liable to
prosecution under Australian law:
Such offences give rise to a plain conflict with international humanitarian law, under
which combatants participating lawfully in an international armed conflict are entitled
to combatant immunity and Prisoner of War (POW) status upon capture …
Under international law, Australia is not lawfully entitled to criminalize enemy
commanders for directing their forces to fight in conformity with international law.
Indeed, international law does not support the kind of extended jurisdiction Australia
is seeking to exercise over such conduct, precisely because of the potential conflict
with the law on combatant immunity in armed conflict.163
8.123 The AGD considers that category D jurisdiction should apply to the offences in
s 80.2, in particular, to capture the possible commission of sedition offences via the
internet:
There appears to be no basis for not treating this offence like other offences that
involve conduct which could lead to harm to Australians when it occurs outside
Australia, whether people trafficking, war crimes or computer offences.164
8.124 In the context of a Senate committee inquiry into people trafficking legislation,
the AGD advised that category D offences are generally restricted to the most serious
international offences—such as genocide, crimes against humanity and war crimes—
for which specific resources are available for investigations and prosecutions.165
ALRC’s views
8.125 The implications of extraterritoriality are most problematic in relation to the
offences in s 80.2(7) and (8), which concern urging another person to assist an enemy
or those engaged in armed hostilities against Australia. As discussed above, the ALRC
proposes the repeal of these offences.
8.126 The application of category D jurisdiction to the remaining offences in s 80.2—
urging the overthrow of the Constitution or Government, urging interference in
Parliamentary elections, and urging inter-group violence—is not as likely to create
undesirable outcomes in practice. The elements of the offences themselves mean that
the urged conduct will generally be intended to occur in Australia, being directed at the
Australian Constitution or Government, Australian Parliamentary elections or at groups
within Australia.166
163
164
165
166
B Saul, Submission SED 52, 14 April 2006.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
Senate Legal and Constitutional Legislation Committee, Criminal Code Amendment (Trafficking in
Persons Offences) Bill 2004 [2005] (2005), 25.
That is, in the case of the latter offence, so as to ‗threaten the peace, order and good government of the
Commonwealth‘): Criminal Code (Cth) s 80.2(5)(b).
8. Offences Against Political Liberty
169
8.127 Further, under s 16.1 of the Criminal Code, the consent of the Attorney-General
is required for prosecution where the conduct (the urging) occurs wholly overseas and
the person alleged to have committed the offence is not an Australian citizen or body
corporate.167 This provides an additional safeguard against inappropriate prosecution.
The ALRC considers that category D extended geographical jurisdiction should
continue to apply to the offences in s 80.2(1), (3) and (5).
8.128 The application of category D to the treason offences in s 80.1 creates more
difficulty. Patrick Emerton states:
This aspect of Australia‘s law of treason is objectionable in itself, because it makes
criminals under Australian law of all foreigners—both civilians and soldiers—who
wage war against Australia, contrary to general principles of international law relating
to armed conflict. Criminalising foreign soldiers, in particular, threatens principles of
combatant immunity, and undermines the reciprocal forbearance between conflicting
powers that Australian soldiers rely upon when engaged in military action.168
8.129 Any problems that are seen to arise in relation to the application of category D
to s 80.2(7) and (8) (which the ALRC proposes be repealed) also may apply to the
treason offences in s 80.1(1)(e) and (f), with implications for the concept of combatant
immunity and other aspects of international humanitarian law.
8.130 An example is if a person were forcibly conscripted by the Taliban and required
to fight against Australian troops in Afghanistan. The person later flees to Australia
and is granted a temporary protection visa while claims for refugee status are being
determined—and may then be subject to prosecution for engaging in armed hostilities
against the Australian Defence Force under s 80.1(1)(f).
8.131 A simple solution to these problems would be to limit the application of the
treason offences to those who are Australian citizens or residents at the time of the
offence. Such a qualification is consistent with the historical origins of the law of
treason, which punished acts deemed to constitute a violation of a subject‘s allegiance
to his or her lord or monarch.169
8.132 The concept of allegiance has retained legal importance in the law of treason.170
The Treason Act of 1351 (Imp),171 which remains in force in the United Kingdom (and
New South Wales) was used to prosecute William Joyce (also known as Lord HawHaw), a propagandist for Germany during the World War II, for high treason. Joyce
was an American citizen, who had resided in British territory and applied for and
167
168
169
170
171
This position will not be changed by the repeal of s 80.5 (Proposal 8–12).
P Emerton, Submission SED 36, 10 April 2006.
See, eg, ‗Historical Concept of Treason: English and American‘ (1960) 35 Indiana Law Journal 70.
In the United States, the United States Code offence of misprision of treason applies only to those ‗owing
allegiance to the United States‘: 18 USC 2382.
Treason Act of 1351 25 Edw III c 2.
170
Review of Sedition Laws
obtained a British passport. A key issue, on appeal before the House of Lords was
whether Joyce had divested himself of allegiance to the British Crown.172
8.133 The repealed Crimes Act treason offences had no citizenship qualification,
although the Gibbs Committee observed that the treason offences ‗must obviously be
construed so as not to apply to an enemy alien in time of war outside Australia‘.173 The
Gibbs Committee recommended that the offence of treason should be stated to apply
to:
(i) an Australian citizen or a member of the Public Service or Defence Force
anywhere; and
(ii) any person (including an enemy alien) voluntarily in Australia.174
8.134 For present purposes, the ALRC considers that the term ‗Australian citizen or
resident‘ should be adopted. These words are used extensively in the Criminal Code,
including in relation to extended geographical jurisdiction. If the ambit of the treason
offences is restricted to citizens and residents, the operation of category D jurisdiction
is appropriate. If a citizen or resident commits the offence of treason, it should not
matter whether or not the conduct or a result of the conduct occurs in Australia.
8.135 Where relevant offences are committed by non-citizens or non-residents there is
adequate coverage in other laws, including the terrorism offences in the Criminal
Code. Those parts of the treason offences dealing with causing the death of, or
harming, the Sovereign, Governor-General or Prime Minister are covered by many
other standard provisions in the criminal law.
Proposal 8–11
Section 80.1 of the Criminal Code should be amended to
require that, at the time of the alleged offence, the person is an Australian citizen
or resident.
(The relevant sections of the Criminal Code, amended as proposed, are set out
in Appendix 2.)
Requirement of Attorney-General’s consent
8.136 Under s 80.5, proceedings for an offence under Division 80 of the Criminal
Code may not be commenced without the written consent of the Attorney-General.
172
173
174
Joyce v Director of Public Prosecutions [1946] AC 347. The Court held that an alien abroad holding a
British passport enjoys the protection of the Crown and if he is adherent to the King‘s enemies he is
guilty of treason, so long as he has not renounced that protection.
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991), [31.6].
Ibid, [31.34].
8. Offences Against Political Liberty
171
According to the Explanatory Memorandum, this provision is designed to provide an
additional safeguard for a person charged with a sedition offence.175
8.137 A person may be arrested, charged and remanded into custody without the prior
consent of the Attorney-General.176 As with any other criminal matter, the
investigating authority, such as the Australian Federal Police, will provide the DPP
with a brief of evidence, on which the DPP will determine—according to its published
guidelines177—whether there is sufficient probative evidence to proceed, and whether
launching a prosecution would be in the public interest. Once the DPP has made a
decision to prosecute, then the written consent of the Attorney-General must be sought
under s 80.5.
8.138 A number of other Criminal Code offences require the Attorney-General‘s
written consent to prosecute.178 These include offences in relation to:
•
international terrorist activities using explosive or lethal devices;179
•
people smuggling offences;180
•
espionage and similar activities;181
•
harming Australians;182 and
•
genocide, crimes against humanity, war crimes and crimes against the
administration of the justice of the International Criminal Court.183
8.139 In addition, as noted above, the Criminal Code provides that the
Attorney-General‘s consent is required in prosecutions for any offence (to which the
jurisdictional provisions apply)184 if the alleged conduct occurs wholly in a foreign
country, and the person is not an Australian citizen, resident or body corporate
incorporated in Australia.185 In such cases, the purpose of the consent requirement is to
175
176
177
178
179
180
181
182
183
184
185
Explanatory Memorandum, Anti-Terrorism Bill (No 2) 2005 (Cth), 93.
Criminal Code (Cth) s 80.5(2)(a) and (b).
Commonwealth Director of Public Prosecutions, The Prosecution Policy of the Commonwealth
<www.cdpp.gov.au/Prosecutions/Policy/Default.aspx> at 11 March 2006.
The consent of the Attorney-General is also required for offences under some other statutes, including
under the Crimes Act 1914 (Cth); Crimes (Ships and Fixed Platforms) Act 1992 (Cth) and Crimes at Sea
Act 2000 (Cth).
Criminal Code (Cth) Division 72. See s 72.7.
Ibid Division 73, Subdivision A. See s 73.5.
Ibid Part 5.2. See s 93.1.
Ibid Division 115. See s 115.6.
Ibid Division 268. See s 268.121.
That is, Ibid ss 14.1, 15.1, 15.2, 15.3 or 15.4.
Ibid s 16.1.
172
Review of Sedition Laws
give regard to considerations of ‗international law, practice and comity, international
relations, prosecutions action that is being or might be taken in another country, and
other public interest considerations‘.186
Consent and the prosecution process
8.140 There have been suggestions that the political nature of the sedition offences
mean there could be perceptions in the community that the Attorney-General, as a
political figure, might be inclined to agree more readily to the prosecution of persons
who criticise government policy or are unpopular with the electorate.187
8.141 In IP 30, the ALRC stated that it agrees that the requirement of the AttorneyGeneral‘s written consent is intended as an additional safeguard rather than an attempt
to ‗politicise‘ this area. The DPP is a statutory officeholder, with a high degree of
independence afforded to that office by statute and legal culture, while the AttorneyGeneral is accountable to the people for his or her actions through Parliament, and
subject to media scrutiny. As the AGD argued before the 2005 Senate Committee
inquiry ‗the Attorney is a political safeguard on the DPP and the DPP is a safeguard on
the Attorney‘.188
8.142 IP 30 asked whether the Attorney-General‘s consent should be required for any
prosecution for the sedition offences.189 There was a mixed response to this question in
submissions to the Inquiry. Some consider that the requirement does provide an
additional protection against unwarranted prosecution;190 others oppose the
involvement of the Attorney-General or hold serious reservations about it.191
8.143 Sedition, at least in its earlier forms, can be characterised as an inherently
political offence. Historically, sedition was used against political dissidents and
opponents of the established political order. Against this background, it is not
surprising that there are misgivings about involving the Attorney-General in the
prosecution process.
186
187
188
189
190
191
I Leader-Elliot, The Commonwealth Criminal Code: A Guide for Practitioners, Attorney-General‘s
Department and Australian Institute of Judicial Administration, 1 March 2002, 365.
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [5.146]–[5.151].
Senate Legal and Constitutional Committee—Australian Parliament, Anti-Terrorism Bill (No 2) 2005:
Transcript of Public Hearing, 18 November 2005, 19 (G McDonald).
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), Ch 7, Question 15.
A Steel, Submission SED 23, 18 April 2006; Australian Government Attorney-General‘s Department,
Submission SED 31, 12 April 2006; B Saul, Submission SED 52, 14 April 2006.
ARTICLE 19, Submission SED 14, 10 April 2006; Centre for Media and Communications Law,
Submission SED 32, 12 April 2006; Federation of Community Legal Centres (Vic) Inc, Submission 167 to
Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 11 November 2005; P Emerton, Submission SED 36,
10 April 2006; A Spathis, Submission SED 17, 10 April 2006; M Weinberg, Consultation, Melbourne,
3 April 2006; R Connolly and C Connolly, Consultation, Melbourne, 5 April 2006.
8. Offences Against Political Liberty
173
8.144 The Federation of Community Legal Centres (Vic) submits that ‗it is the very
nature of the laws, insofar as they are intended to prosecute political speech, that they
be prosecuted in a politicised manner‘. The requirement for the consent would:
create a situation where political motives influence whether particular conduct is
prosecuted or not. This is inappropriate in a democratic society and any laws creating
the potential for such political influence are anti-democratic as such.192
8.145 The Centre for Media and Communications Law expresses similar concerns and
notes that removing the requirement for the Attorney-General‘s consent would
‗significantly lessen the risk of decisions about prosecutions being perceived as
political and would place the provisions more clearly within the general operation of
the criminal law‘.193
8.146 ARTICLE 19 oppose requiring the consent of the Attorney-General in matters
of press freedom because, in its view, ‗written ministerial consent is open to abuse and
political interference in respect of the press, which should be robustly protected from
such threats to its independence‘.194
8.147 The consent of the Attorney-General only becomes an issue where the DPP has
already made a decision to prosecute. Concerns about the Attorney‘s involvement are
also directed to decisions not to prosecute—that is, the risk of selective prosecution,
where some categories of alleged offenders are prosecuted but not others. Arguably,
the Attorney is less accountable where there is a decision not to prosecute because the
prudence of the decision is not exposed by a criminal trial and consequent media and
political scrutiny. It is suggested that, to provide additional transparency in decisionmaking, the Attorney-General should have to give a report justifying the exercise of the
discretion.195 Others suggest, as a further safeguard, the promulgation of guidelines for
sedition prosecutions.196
8.148 The AGD states that there is no reason to remove the consent requirement,
which provides an additional safeguard and ‗addresses any concerns about officials
misusing the offence‘.197
ALRC’s views
8.149 On balance, the ALRC considers that s 80.5 should be repealed. The AttorneyGeneral‘s consent to prosecution would still be required under s 16.1, where the
192
193
194
195
196
197
Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006.
Centre for Media and Communications Law, Submission SED 32, 12 April 2006.
ARTICLE 19, Submission SED 14, 10 April 2006.
Law Institute of Victoria, Consultation, Melbourne, 4 April 2006.
University of Melbourne Academics, Consultation, Melbourne, 5 April 2006.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
174
Review of Sedition Laws
alleged conduct occurs wholly in a foreign country and the person charged is not an
Australian citizen, resident or body corporate incorporated in Australia.198
8.150 In modern offences, the requirement for the Attorney-General to consent to
prosecution is most often imposed in response to considerations about the
extraterritorial operation of offences. In relation to the offences in Division 80 of the
Criminal Code, s 16.1 seems adequate to ensure that these implications are considered
by the Attorney-General.
8.151 The ALRC is strongly influenced by the fact that the terrorism offences in
Part 5.3 of the Criminal Code do not require the consent of the Attorney-General
(unless s 16.1 applies). It seems logical for the same position to apply to the
Division 80.2 offences against political liberty and public order (as proposed by the
ALRC).
8.152 The AGD advises that a consent requirement is sometimes considered desirable
to ensure that political responsibility will be taken for offences that are perceived to
have potential for abuse in the hands of officials. The ALRC is not convinced that this
rationale justifies the consent requirement for the Division 80 offences. The
independent status given to the Director of the Office of the DPP under the Director of
Public Prosecutions Act 1983 (Cth) (DPP Act) provides adequate protection in this
regard.
8.153 The Prosecution Policy of the Commonwealth199 (the Prosecution Policy)
provides guidelines for the making of decisions in the prosecution process. Chapter 2
of the Prosecution Policy contains a discussion of the factors that may arise for
consideration in determining whether the public interest requires a prosecution. These
include, for example:
(a) the seriousness or, conversely, the triviality of the alleged offence or that it is of a
‗technical‘ nature only …;
(g) the effect on public order and morale …;
(h) the obsolescence or obscurity of the law;
(i) whether the prosecution would be perceived as counter-productive, for example,
by bringing the law into disrepute …;
(l) whether the consequences of any resulting conviction would be unduly harsh and
oppressive;
(m) whether the alleged offence is of considerable public concern …;
(p) the likely length and expense of a trial …;
198
199
See Criminal Code (Cth) ss 80.4, 15.4, 16.1.
Commonwealth Director of Public Prosecutions, The Prosecution Policy of the Commonwealth
<www.cdpp.gov.au/Prosecutions/Policy/Default.aspx> at 11 March 2006.
8. Offences Against Political Liberty
175
(t) the necessity to maintain public confidence in such basic institutions as the
Parliament and the courts.200
8.154 The Prosecution Policy also provides that a decision whether or not to prosecute
must clearly not be influenced by:
(a) the race, religion, sex, national origin or political associations, activities or beliefs
of the alleged offender or any other person involved …;
(c) possible political advantage or disadvantage to the Government or any political
group or party …201
8.155 Under s 8 of the DPP Act, the performance of the DPP‘s functions is subject to
directions or guidelines given by the Attorney-General. Such directions or guidelines
may, among other things, relate to the circumstances in which the Director should
institute or carry on prosecutions for offences; and can be given in relation to particular
cases.202 Section 8 directions or guidelines must be published in the Gazette and tabled
in Parliament.203 Therefore, while the ALRC proposes the repeal of s 80.5, there
remains another mechanism for ministerial intervention in prosecutions under s 80.2—
one that is subject to Parliamentary scrutiny.204
8.156 Further, under s 9(5) of the DPP Act, the DPP may take over any private
prosecution and terminate it. In 1996, with respect to the repeal of certain provisions
requiring the Attorney-General‘s consent to prosecution, the Attorney-General, the
Hon Daryl Williams MP, observed that the consent provisions were originally enacted
for the purpose of deterring private prosecutions brought in inappropriate
circumstances—particularly for offences which related to national security or
international treaty obligations:
However, since establishing the office of the Commonwealth Director of Public
Prosecutions the retention of those provisions is difficult to justify. That is particularly
so now that the Director of Public Prosecutions has the power to take over and
discontinue a private prosecution brought in relation to a Commonwealth offence.205
200
201
202
203
204
205
Ibid, [2.10].
Ibid, [2.10].
Director of Public Prosecutions Act 1983 (Cth) s 8(2)(a)–(b).
Ibid s 8(3).
The ALRC understands that, to date, the power to issue s 8 directions or guidelines has not been
exercised by an Attorney-General: Commonwealth Director of Public Prosecutions, Consultation,
Canberra, 26 April 2006.
Commonwealth, Parliamentary Debates, House of Representatives, 4 December 1996, 7714
(D Williams, Attorney-General).
176
Review of Sedition Laws
Proposal 8–12
Section 80.5 of the Criminal Code regarding the
requirement of the Attorney-General‘s written consent to a prosecution should
be repealed.
(The relevant sections of the Criminal Code, amended as proposed, are set out
in Appendix 2.)
9. Urging Inter-Group Violence
Contents
Introduction
Legislating against the incitement of hatred and violence
Federal law reform
Existing anti-vilification laws
Reform movements: 1995 to 2005
Sedition and inter-group violence
The common law
Crimes Act 1914
Gibbs Committee
Legislative amendments in 2005
Criticisms of section 80.2(5)
Sedition and vilification
Linking inter-group violence and terrorism
Peace, order and good government of the Commonwealth
Obligations under international law
Identified groups
Broader review of anti-vilification laws
ALRC‘s view
A public order offence
Modification of the offence
177
179
179
181
183
184
184
186
187
188
189
189
191
193
195
196
198
199
199
200
Introduction
9.1 This chapter will examine the new offence of urging inter-group violence in
s 80.2(5) and (6) of the Criminal Code (Cth), which provides that:
(5) A person commits an offence if:
(a) the person urges a group or groups (whether distinguished by race, religion,
nationality or political opinion) to use force or violence against another group or other
groups (as so distinguished); and
(b) the use of the force or violence would threaten the peace, order and good
government of the Commonwealth.
(6) Recklessness applies to the element of the offence under subsection (5) that it is a
group or groups that are distinguished by race, religion, nationality or political
opinion that the first-mentioned person urges the other person to use force or violence
against.
178
9.2
Review of Sedition Laws
The scope and operation of the offence is set out in detail in Chapter 4.
9.3 Section 80.2(5) ‗modernises‘ the old sedition offence contained in s 24A(g) of
the Crimes Act 1914 (Cth), which defined an intention to ‗promote feelings of ill-will
and hostility between different classes of Her Majesty‘s subjects so as to endanger the
peace, order or good government of the Commonwealth‘ as a ‗seditious intention‘.1
9.4 This new offence overlaps to some extent with existing federal and state antivilification laws, which render unlawful (and in some cases, criminal) public acts
which could incite others to hate, hold in contempt or seriously ridicule a person or
group of people. At a federal level, the conduct proscribed by s 80.2(5) may in some
cases be prosecuted using other criminal offences such as incitement to commit an
offence or telecommunications offences. However, s 80.2(5) is the first federal
provision specifically to criminalise the urging of violence against racial, religious,
national or political groups.
9.5 Section 80.2(5) has generated mixed responses in public debate and
consultation. It has been welcomed by many as a step towards the implementation of
Australia‘s obligations under international law to criminalise incitement of national,
racial and religious hatred. However, it has also been subject to a number of criticisms
in relation to both the drafting of the provision and the anti-terrorist framework in
which it was enacted. In particular, it has been argued that the urging of inter-group
violence cannot be properly categorised as ‗sedition‘ and that such an offence belongs
with anti-vilification laws, rather than with the cluster of offences in s 80.2.
9.6 This chapter will examine the background and policy rationale for the creation
of a federal offence of urging the use of force or violence against groups distinguished
on the basis of race, religion, nationality or political opinion. It will examine the
historical link between sedition offences and inter-group violence, and the relationship
between s 80.2(5) and anti-vilification laws. The criticisms of s 80.2(5) in its current
form will be examined in detail.
9.7 The ALRC proposes to characterise the present offence as an offence against
public order, and to retain it in a modified form in the Criminal Code. The important
role of anti-discrimination laws is highlighted, and the ALRC recommends continuing
educational programs and other strategies designed to promote inter-communal
harmony and understanding.
9.8 Aspects of the framing of the offence, including the role of intention and
recklessness as fault elements, the extraterritorial application of the offence and the
requirement for the Attorney-General to consent to prosecution, are discussed in detail
in Chapter 8. Defences are discussed in detail in Chapter 10.
1
Crimes Act 1914 (Cth) s 24A(g).
9. Urging Inter-Group Violence
179
Legislating against the incitement of hatred and violence
9.9 The debate about the role that the law—particularly the criminal law—can or
should play in combating expressions or acts of racial and other prejudice gained
prominence in the early 1990s, following a number of significant national inquiries
which highlighted the nature and extent of the problem of racism and racist violence in
Australia.2 The first anti-vilification laws were introduced in New South Wales in
1989,3 and similar legislation subsequently was enacted in all state and territory
jurisdictions except the Northern Territory.4 Despite having been debated since the
1970s,5 federal anti-vilification laws were not introduced until 1995.6
Federal law reform
9.10 The Racial Discrimination Act 1975 (Cth) (RDA) was introduced to implement
into Australian law the provisions of the International Convention on the Elimination
of All Forms of Racial Discrimination 1966 (CERD),7 to which Australia is a party.
When first debated in Parliament, the Racial Discrimination Bill 1975 (and the earlier
1973 and 1974 Bills) included a number of criminal offences of incitement to racist
violence. These were opposed by the majority of the Senate, and the amendment to
remove the offences was accepted by the Government ‗with a total lack of enthusiasm‘
in order to progress the Bill.8 This resulted in the Government entering a reservation to
art 4(a) of CERD in relation to criminal offences, which noted that ‗it is the intention
of the Australian Government, at the first suitable moment, to seek from Parliament
legislation specifically implementing the terms of article 4(a)‘.9
9.11 In its 1991 report, Racist Violence, the Human Rights and Equal Opportunity
Commission (HREOC) recommended that the Crimes Act be amended to include new
criminal offences of racist violence and intimidation,10 and incitement of racist
2
3
4
5
6
7
8
9
10
See M Jones, ‗The Legal Response: Dealing with Hatred—A User‘s Guide‘ in C Cunneen, D Fraser and
S Tomsen (eds), Faces of Hate—Hate Crime in Australia (1997) 214.
Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW).
Criminal Code 1913 (WA) ss 76–80 (inserted 1990); Discrimination Act 1991 (ACT) ss 65–67; Racial
Vilification Act 1996 (SA); Anti-Discrimination Act 1998 (Tas) ss 19, 21; Anti-Discrimination Act 1991
(Qld) s 124A (inserted 2001); Racial and Religious Tolerance Act 2001 (Vic).
M Jones, ‗The Legal Response: Dealing with Hatred—A User‘s Guide‘ in C Cunneen, D Fraser and S
Tomsen (eds), Faces of Hate—Hate Crime in Australia (1997) 214, 217.
Racial Hatred Act 1995 (Cth), which inserted Pt IIA in the Racial Discrimination Act 1975 (Cth).
Commonwealth, Parliamentary Debates, House of Representatives, 13 February 1975, 285
(K Enderby—Attorney-General).
Commonwealth, Parliamentary Debates, House of Representatives, 3 June 1975, 3248 (K Enderby—
Attorney-General).
The declaration of reservation was attached to the instrument of ratification entered for Australia on
30 September 1975: International Convention on the Elimination of all Forms of Racial Discrimination,
7 March 1966, [1975] ATS 40, (entered into force generally on 4 January 1969).
Human Rights and Equal Opportunity Commission, Racist Violence: Report of the National Inquiry into
Racist Violence in Australia (1991), 297.
180
Review of Sedition Laws
violence and incitement to racial hatred likely to lead to violence.11 HREOC also
recommended that incitement to racial hostility should be made unlawful, but not
attract criminal sanctions.12 It was further recommended that federal, state and territory
criminal laws be amended to enable courts to impose higher penalties where there is a
racist motivation in the commission of an offence.13
9.12 In the national report of the Royal Commission into Aboriginal Deaths in
Custody, Commissioner Elliott Johnston QC recommended the creation of a civil
offence (but not a criminal offence) at the federal level proscribing racial vilification.14
9.13 In 1991, the Committee of Review of Commonwealth Criminal Law (the Gibbs
Committee) recommended the adoption of a new federal offence of incitement to intergroup violence, whether distinguished by nationality, race or religion, as part of its
proposed modernisation of the law of sedition. This is discussed later in this Chapter.
9.14 In its 1992 report Multiculturalism and the Law, the ALRC recommended that
the Crimes Act be amended to include an offence of incitement to racist violence.15 The
ALRC was divided on the question of whether incitement to racist hatred and hostility
should be made unlawful or a criminal offence. A majority recommended that it should
be made unlawful, subject to civil penalties, on the basis that making incitement to
racist hatred and hostility a criminal offence would unduly restrict freedom of speech.16
However, two Commissioners recommended that incitement to racist hatred should be
a criminal offence on the basis that this is required in order to fulfil Australia‘s
international obligations pursuant to art 4(a) of CERD:
Such ideas are the root cause of racism. To leave the propagation of hatred to be dealt
with under ‗offensive behaviour‘ or similar provisions is to ignore the quite different
insidious effects of this kind of speech.17
9.15 The minority therefore recommended the inclusion of the following offence in
the Crimes Act:
A person must not publish, by any means, anything that is based on ideas or theories
of superiority of any race or group of persons of one colour or ethnic origin over
another, or promotes hatred or hostility between such races or groups, if the person
intends that the publication will incite hatred or hostility towards an identifiable group
and is likely to have that effect.18
11
12
13
14
15
16
17
18
Ibid, 298.
Ibid, 299.
Ibid, 302.
Royal Commission into Aboriginal Deaths in Custody, National Report, Vol 4 (1991), Rec 213.
Australian Law Reform Commission, Multiculturalism and the Law, ALRC 57 (1992), [7.40].
Ibid, [7.47].
Ibid, [7.48].
Ibid, [7.48].
9. Urging Inter-Group Violence
181
9.16 Following these inquiries, the Racial Discrimination Amendment Bill 1992 was
introduced into the House of Representatives and community consultation was
conducted. A revised version, the Racial Hatred Bill, was introduced in 1994. The Bill
originally contained three criminal offences which were to be placed in the Crimes Act
under the heading ‗Offences Based on Racial Hatred‘: first, threatening to cause
physical harm to a person or group because of their race, colour, or national or ethnic
origin;19 secondly, threatening to destroy or damage property because of the race,
colour, or national or ethnic origin of any other group;20 and thirdly, doing an act
otherwise than in private that is reasonably likely to incite racial hatred.21
9.17 The Senate Legal and Constitutional Legislation Committee examined the
Racial Hatred Bill 1994, and the majority supported the introduction of the Bill without
amendment.22 However, the Opposition and the Greens were opposed to the inclusion
of the criminal offences.23 The Government agreed to remove the criminal offences
from the Bill in order to ensure that the rest of the Bill, including the civil remedies,
was enacted.24
Existing anti-vilification laws
9.18 Anti-vilification laws in Australia rely primarily on civil rather than criminal
mechanisms. Criminal offences exist in some jurisdictions for acts of serious
vilification.
Federal anti-vilification laws
9.19 Section 18C of the RDA renders it unlawful (but not criminal) to use sounds,
words, images or writing in public that are ‗reasonably likely to offend, insult,
humiliate or intimidate another person or a group of people‘ and that are ‗used because
of the race, colour or national or ethnic origin of the other person or group of people‘.25
9.20 Religious vilification is not included in this provision; however, courts have
held that some religious groups (such as Jewish people and Sikhs) fall within the
definition of groups distinguished by ‗ethnic origin‘.26 It has yet to be determined
19
20
21
22
23
24
25
26
Racial Hatred Bill 1994 (Cth) cl 58.
Ibid cl 59.
Ibid cl 60.
Senate Legal and Constitutional Legislation Committee, Racial Hatred Bill 1994 (1995).
Ibid, minority report. See Commonwealth, Parliamentary Debates, House of Representatives, 31 August
1995, 945 (P Ruddock).
Commonwealth, Parliamentary Debates, House of Representatives, 31 August 1995, 945 (M Lee—
Minister for Communications and the Arts). In this speech the Minister also noted the Labor
Government‘s intention to take the issue of the need for criminal offences relating to incitement of racial
violence to the next election.
Racial Discrimination Act 1975 (Cth) s 18C.
Human Rights and Equal Opportunity Commission, Isma—Listen: National Consultations on Eliminating
Prejudice Against Arab and Muslim Australians (2004), 29.
182
Review of Sedition Laws
whether Muslim people fall within the definition under the federal legislation;
however, courts that have considered the issue under state and territory laws have held
that Muslim people do not share a common racial, national or ethnic origin.27 In its
2004 report, Isma—Listen: National Consultations on Eliminating Prejudice against
Arab and Muslim Australians, HREOC concluded that is unlikely that a person
discriminated against or vilified solely on the basis of their Islamic faith would be
protected by the federal legislation.28
State and territory anti-vilification laws
9.21 As outlined above, all state and territory jurisdictions in Australia except the
Northern Territory have anti-vilification laws. However, there is significant
jurisdictional variation as to which groups are protected from vilification, what harm
thresholds are applied, and whether criminal sanctions or civil remedies are available.
9.22 Racial vilification is unlawful in the ACT, New South Wales, Queensland,
South Australia, Tasmania, Victoria and Western Australia. Only civil remedies are
available in Tasmania, and only criminal sanctions apply in Western Australia. In the
remaining jurisdictions, a two-tiered approach has been adopted—racial vilification
constitutes a civil wrong, and may amount to a criminal offence where the conduct is
serious.
9.23 Religious vilification is unlawful in Tasmania, Queensland and Victoria. In the
latter two jurisdictions, serious conduct may attract criminal sanctions.
9.24 Vilification on the basis of sexual orientation and gender identity is unlawful in
the ACT, New South Wales and Queensland (civil and criminal sanctions apply).
Vilification on the basis of HIV/AIDS status is unlawful in New South Wales and the
ACT (civil and criminal sanctions apply). Vilification on the basis of disability is
unlawful in Tasmania (civil sanctions only).
9.25 In most jurisdictions, for vilification to be a criminal offence it must generally
be shown that the conduct involves a high level of harassment or threat, such as
incitement to violence, or threats to persons or property.29 For example, in New South
Wales, s 20D of the Anti-Discrimination Act 1977 (NSW) renders it an offence to
by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a
person or group of persons on the ground of the race of the person or members of the
group by means which include: (a) threatening physical harm towards, or towards any
property of, the person or group of person, or (b) inciting others to threaten physical
harm towards, or towards any property of, the person or group of persons.30
27
28
29
30
Ibid, 29.
Ibid, 30.
R v Rae (1998) 45 NSWLR 546.
Anti-Discrimination Act 1977 (NSW) s 20D.
9. Urging Inter-Group Violence
183
Reform movements: 1995 to 2005
9.26 The anti-vilification regimes throughout Australia have been subject to a
number of criticisms. In particular, the laws have been criticised on the basis that there
is no jurisdictional uniformity with regard to: which groups are protected; which acts
are proscribed; what harm thresholds apply; and whether civil or criminal sanctions
apply. Further, it has been argued that the existing laws lack precision and clarity in a
number of key respects, which has led to the development of an incoherent body of
case law.31
9.27 In both its 1998 report, Article 18: Freedom of Religion and Belief, and its 2004
report, Isma—Listen: National Consultations on Eliminating Prejudice against Arab
and Muslim Australians, HREOC recommended the introduction of a federal law
rendering vilification on the ground of religion or belief unlawful.32 HREOC criticised
the current federal and state regimes for being inconsistent and inadequate.33 It stated
that while it was clear that vilification, harassment and incitement to religious hatred
on the basis of religion or belief occurred in Australia,34 whether a person was able to
seek redress pursuant to anti-vilification laws depended upon the jurisdiction in which
the conduct occurred.35
9.28 In 2003, the federal Opposition introduced a Bill to create offences for racial
and religious vilification—substantially the same offences as those proposed in the
original Racial Hatred Bill 1994.36 The Bill did not proceed.
9.29 In December 2005, when the Anti-Terrorism Bill 2005 (Cth) was before
Parliament, the Opposition introduced the Crimes Act Amendment (Incitement to
Violence) Bill 2005 (Cth). This Bill proposed that criminal offences for racial and
religious vilification be inserted in the Crimes Act as the Opposition‘s preferred option
to the proposed s 80.2(5). The proposed incitement offences were broader than the
current sedition provision in that they applied to acts directed at individuals on the
basis of race etc, and did not confine the offences to incitements directed at defined
31
32
33
34
35
36
D Meagher, ‗So Far So Good?: A Critical Evaluation of Racial Vilification Laws in Australia‘ (2004) 32
Federal Law Review 226, 227.
Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief (1998), rec
5.3; Human Rights and Equal Opportunity Commission, Isma—Listen: National Consultations on
Eliminating Prejudice Against Arab and Muslim Australians (2004), 6, 129.
Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief (1998),
139.
Human Rights and Equal Opportunity Commission, Isma—Listen: National Consultations on Eliminating
Prejudice Against Arab and Muslim Australians (2004), 3–4; Human Rights and Equal Opportunity
Commission, Article 18: Freedom of Religion and Belief (1998), 139.
Human Rights and Equal Opportunity Commission, Isma—Listen: National Consultations on Eliminating
Prejudice Against Arab and Muslim Australians (2004), 128; Human Rights and Equal Opportunity
Commission, Article 18: Freedom of Religion and Belief (1998), 139.
Racial and Religious Hatred Bill 2003 (Cth); Racial and Religious Hatred Bill 2003 [No 2] (Cth).
184
Review of Sedition Laws
groups.37 There was no requirement that the violence disturb the peace, order and good
government of the Commonwealth.38 Unlike the sedition provisions, the Bill did not
contain political opinion as a ground upon which incitement to violence was
prohibited. This model mirrors substantially the offence of serious vilification
contained in s 20C of the Anti-Discrimination Act 1977 (NSW). The Bill has not
proceeded.
Sedition and inter-group violence
9.30 In light of the protracted debate about federal legislative reform to address the
incitement of hatred and violence against particular groups, many have found the
introduction of s 80.2(5) in 2005 a surprising occurrence. In order to understand
s 80.2(5), it is important to examine the historical link between the law of sedition and
inter-group violence.
The common law
9.31 Classically, the law of sedition was concerned with words or actions inciting
disaffection or violent opposition against the state. In 1887 the eminent legal historian
Sir James Fitzjames Stephen, whose definition of seditious intention was widely
accepted as the classic statement of the law, asserted that ‗seditious intention‘ included
an intention to ‗raise discontent or disaffection amongst His Majesty‘s subjects, or to
promote feelings of ill-will and hostility between different classes of such subjects‘.39
9.32 The primary basis of Stephen‘s assertion appears to have been an 1844 case,
O’Connell v The Queen, in which the defendants were prosecuted successfully for
conspiring to promote feelings of ill-will and hostility between the English and the
Irish.40 Although the legal basis for this aspect of Stephen‘s statement of the law has
been challenged,41 his definition was adopted by the Criminal Code Commissioners in
England42 and by the courts.43
9.33 This extended definition of the offence allowed it, in theory, to be used to
prosecute those who incited racial or religious hatred.44 However, the few recorded
37
38
39
40
41
42
43
44
Explanatory Memorandum, Crimes Act Amendment (Incitement to Violence) Bill 2005 (Cth), 4.
Ibid, 4.
J Stephen, A Digest of the Criminal Law (1887), cited in Law Commission of England and Wales,
Working Paper No 72 Second Programme, Item XVIII Codification of the Criminal Law—Treason,
Sedition and Allied Offences (1977), 42.
O’Connell v The Queen (1844) 8 ER 1061, discussed in Boucher v The King [1951] 2 DLR 369, 381–382
(Kellock J).
Boucher v The King [1951] 2 DLR 369, 381.
A Criminal Code was drafted and introduced into the British Parliament in 1892, however it was rejected
in the House of Commons. Section 102 of the Code adopted in substance Stephen‘s definition of
‗seditious intention‘: see Ibid, 395.
Law Commission of England and Wales, Working Paper No 72 Second Programme, Item XVIII
Codification of the Criminal Law—Treason, Sedition and Allied Offences (1977), 41.
See, eg, R v Burns (1886) 16 Cox CC 355; R v Caunt (Unreported, Birkett J, 1947). See also D Feldman,
Civil Liberties and Human Rights in England and Wales (2nd ed, 2002), 899.
9. Urging Inter-Group Violence
185
cases in this area indicate that attempts to prosecute this type of conduct using sedition
law were generally unsuccessful.45
9.34 There was considerable uncertainty at common law about whether inciting illwill between groups could amount to sedition or whether there was an additional
requirement that there be an intention to incite violence or create public disturbance
with the purpose of disturbing constituted authority. This uncertainty was addressed by
the decision of the Supreme Court of Canada in Boucher v The King, where a member
of the Jehovah‘s Witnesses was convicted of seditious libel for publishing a pamphlet
entitled ‗Quebec‘s Burning Hate for God and Christ and Freedom‘.46 The pamphlet
detailed instances of alleged persecution of members of the group by members of the
Roman Catholic clergy and concluded with a statement to the effect that Quebec
Catholics were indoctrinated by the priesthood to think that they were serving God‘s
cause by attacking Jehovah‘s Witnesses. On appeal, the Supreme Court of Canada
overturned the conviction, holding that the common law of sedition could not be used
to prosecute acts inciting ill-will or violence between groups unless there was an
intention to incite resistance or violence for the purpose of disturbing constituted
authority.47
9.35 The decision in Boucher was approved by the Queen‘s Bench in R v Chief
Metropolitan Stipendiary Magistrate; ex parte Choudury, where a private prosecution
for seditious and blasphemous libel was brought against the author and publishers of
The Satanic Verses.48 The basis of the charge was that the book‘s portrayal of Islam
created hostility between Muslims and non-Muslims, provoking violence and threats of
violence against Muslims. The Court held that the charge of seditious libel had not
been made out:
Proof of an intention to promote feelings of ill will and hostility between classes of
subjects does not alone establish a seditious intention. Not only must there be proof of
an incitement to violence in this connection, but it must be violence or resistance for
the purpose of disturbing constituted authority. … By constituted authority what is
meant is some person or body holding public office or discharging some public
function of the state.49
9.36 These authorities emphasise that the focus of sedition offences is the subversion
of political authority and indicate that there is little scope for the common law of
sedition to be used to prosecute vilification or incitement to violence against particular
45
46
47
48
49
See, eg, R v Caunt (Unreported, Birkett J, 1947); R v Leese (The Times, 19 and 22 September 1936). The
prosecution history of this aspect of sedition is discussed in some detail in Boucher v The King [1951] 2
DLR 369.
Boucher v The King [1951] 2 DLR 369.
Ibid, 453.
R v Chief Metropolitan Stipendiary Magistrate; ex parte Choudhury [1991] 1 QB 429.
Ibid, 453.
186
Review of Sedition Laws
groups, unless it can be shown that there is a clear intention to incite violence or public
disturbance against the state or the institutions of government.
Crimes Act 1914
9.37 The recently repealed sedition provisions in the Crimes Act were enacted in
1920 and replicated in substance the British common law. Section 24A(g) rendered it
an offence to ‗promote feelings of ill-will and hostility between different classes of Her
Majesty‘s subjects so as to endanger the peace, order and good government of the
Commonwealth‘,50 either by engaging in a seditious enterprise,51 or by writing,
printing, uttering or publishing seditious words.52
9.38 Subsection 24A(g) was considered by the High Court in R v Sharkey, where the
defendant was successfully prosecuted for seditious libel on the basis of a statement
that the Communist Party of Australia would support Soviet troops in the event that
they invaded Australia.53 The majority held that s 24A(g) was constitutionally valid,54
finding that the words ‗peace, order and good government of the Commonwealth‘ were
words of limitation which brought the subsection within the Commonwealth‘s power
(pursuant to s 51(xxxix) of the Constitution) to punish acts ‗which strike at the
Constitution, the established order of Government and the execution and maintenance
of the Constitution and Commonwealth law‘.55 For example, Williams J stated:
The difficulty is to determine what is meant by the Commonwealth. If it means the
Commonwealth as a geographical unit, the provision would be too wide, because laws
directed to prevent the promotion of ill-will and hostility between different classes of
His Majesty‘s subjects would fall within the sphere of State legislative power except
to the extent to which the promotion of such feelings could detrimentally affect the
exercise of the executive legislative or judicial powers of the Commonwealth. But the
word ‗Commonwealth‘ is capable of meaning the Commonwealth as the body politic
in the sense in which it is used in the Act to constitute the Commonwealth of
Australia. I am of the opinion that this meaning should be given to the word in
s 24A(1)(g) of the Crimes Act. The words ‗so as to endanger the peace, order and
good government of the Commonwealth‘ then limit the generality of the preceding
words and confine the seditious intention to an intention to promote feelings of ill-will
and hostility between different classes of His Majesty‘s subjects so as to endanger the
peace, order and good government of the Commonwealth as a body politic.56
9.39 The majority held that Sharkey‘s words were expressive of a seditious intention
within the meaning of s 24A(g) of the Crimes Act.
50
51
52
53
54
55
56
Crimes Act 1914 (Cth) s 24A(g).
Ibid s 24C.
Ibid s 24D.
R v Sharkey (1949) 79 CLR 121.
Ibid, 137–138 (Latham CJ), 145 (Rich J), 158 (McTiernan J) 159–160 (Williams J), 163 (Webb J).
Ibid, 157 (McTiernan J).
Ibid, 159–160.
9. Urging Inter-Group Violence
187
9.40 In a dissenting judgment, Dixon J held that s 24A(g) was not a valid exercise of
Commonwealth power.
Unless in some way the functions of the Commonwealth are involved or some subject
matter within the province of its legislative power or there is some prejudice to the
security of the Federal organs of government to be feared, ill-will and hostility
between different classes of His Majesty‘s subjects are not a matter with respect to
which the Commonwealth may legislate … It was doubtless because this was seen to
be the case that the curious words ‗so as to endanger the peace, order or good
government of the Commonwealth‘ were added. …57
The words are in my opinion incapable of any definite meaning which would provide
the necessary connection with the subjects of Federal power, with the administration
of the Federal Government or with the security of any of its institutions. They are as
large as the practically identical words in s 51 which are larger than the enumerated
legislative powers of the Parliament.58
9.41 There are no reported cases in Australia in which s 24A(g) has been used to
prosecute vilification of racial, religious or other groups.59 Despite this—and the fact
that the Crimes Act sedition offences had not been used for over half a century—a
number of modern commentaries prior to the 2005 amendments listed the sedition
provisions in the Crimes Act as a potential means of prosecuting conduct motivated by
racial and religious hatred.60 However, the Attorney-General‘s Department (AGD)
informed the Senate Committee inquiry into the Anti-Terrorism Bill (No 2) 2005 that
s 24A(g) may not apply in this context as the word ‗classes‘ might be read literally so
as not to apply to groups distinguished on the basis of race and similar grounds.61
Gibbs Committee
9.42 In 1991, the Gibbs Committee reviewed the sedition provisions in the Crimes
Act and made a broad recommendation that they be modernised (along with other
national security offences, such as treason and treachery).62 In particular, the Gibbs
Committee considered that a ‗narrower version‘ of s 24A(g) should be included,63 and
recommended that it be made an offence to
57
58
59
60
61
62
63
Ibid, 150.
Ibid, 153.
I Grant and G Dean, Regulating Race Hate Speech: A Proposal for Criminal Law Reform (1999) National
Law Review <www.nlr.com.au> at 29 January 2006, [22].
See, eg, Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief
(1998), 127; I Grant and G Dean, Regulating Race Hate Speech: A Proposal for Criminal Law Reform
(1999) National Law Review <www.nlr.com.au> at 29 January 2006, [21]; Human Rights and Equal
Opportunity Commission, Racist Violence: Report of the National Inquiry into Racist Violence in
Australia (1991), 29.
Australian Government Attorney-General‘s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005, 3.
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991).
Ibid, [32.16].
188
Review of Sedition Laws
incite by any form of communication … the use of force or violence by groups within
the community, whether distinguished by nationality, race or religion, against other
such groups or members thereof.64
9.43 The Gibbs Committee did not discuss whether the label ‗sedition‘ should still
attach to the recommended offence. The recommended provision did not contain the
requirement that the force or violence be intended to disturb the ‗peace, order and good
government of the Commonwealth‘.
9.44 The Gibbs Committee‘s rationale for recommending the creation of such an
offence is not evident in its report. The recommendation was made at a time when the
enactment of federal provisions addressing racial and other vilification was being hotly
debated, coinciding with a number of significant national inquiries such as HREOC‘s
National Inquiry into Racist Violence in Australia and the ALRC Inquiry into
multiculturalism and the law. However, neither the background nor the policy rationale
for such reform was alluded to by the Gibbs Committee.
Legislative amendments in 2005
9.45 According to the Explanatory Memorandum for the Anti-Terrorism Act (No 2)
2005, ‗new subsection 80.2(5) modernises the language from classes or groups as
recommended by the Gibbs Report‘.65 However, s 80.2(5) differs from the provision
recommended by the Gibbs Committee in two ways: first, s 80.2(5) contains the
requirement that the force or violence urged would threaten the ‗peace, order and good
government of the Commonwealth‘; and secondly, s 80.2(5) extends protection to
groups distinguished on the basis of political opinion.
9.46 The rationale for retaining and modernising this offence was that the existing
provisions did not ‗focus on key terrorism themes such as urging violence by one racial
group against another‘.66 In a submission to the 2005 Senate Committee inquiry, the
AGD also argued that s 80.2(5) was necessary to prosecute acts urging violence
between groups as other relevant criminal offences such as incitement carried too high
a proof threshold.67 It referred to the example of a web page that gave readers
instructions on how to shoot foreigners in the streets of Jakarta and stated:
[Section 80.2(5)] would capture the type of conduct outlined in the web page …
Although the page depicts shooting foreigners it does not appear to focus much on the
political motivations which would be necessary for proof of a ‗terrorist act‘ offence
(so charging for incitement to commit a terrorist act offence or a terrorist act offence
itself would appear excluded, as would an individual advocating a terrorist act
offence) and it is probably insufficiently specific in terms of the target to be
prosecuted as incitement to commit murder. The threat to kill offences in the Criminal
64
65
66
67
Ibid, [32.18].
Explanatory Memorandum, Anti-Terrorism Bill (No 2) 2005 (Cth), 90.
Australian Government Attorney-General‘s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005, Attachment A, 19.
Ibid, 2–3.
9. Urging Inter-Group Violence
189
Code do not apply because of lack of specificity about who is being threatened (see
s 474.15—using a carriage service to make a threat). Subsection 474.17—Using a
carriage service to menace or cause offence—appears feasible but the maximum
penalty is only 3 years imprisonment. … This offence is easier to prove than the
alternatives—it would not have been put forward as an option if it was not.68
9.47 The AGD also stated that s 80.2(5) partly implemented art 20 of the
International Covenant on Civil and Political Rights 1966 (ICCPR).69 However, the
AGD has not indicated whether s 80.2(5) was intended as a response to calls for the
enactment of federal anti-vilification laws. Indeed, in its submission to the 2005 Senate
Committee inquiry, the AGD reiterated that
The [Anti-Terrorism Bill (No 2) 2005] implements those aspects of the Gibbs Report
that are relevant to the prevention of terrorism. The Bill has been developed to deal
with terrorism and is not a suitable vehicle for broader law reform initiatives.70
Criticisms of section 80.2(5)
9.48 Section 80.2(5) has generated largely positive, but at times mixed, responses in
public debate and community consultation. It has been welcomed by many as a first
step in the implementation of Australia‘s obligations under international law to
proscribe advocacy of racial, religious and national hatred. However, the drafting of
s 80.2(5) and the context in which it has been enacted have been questioned.
9.49 It should be noted that many of the criticisms in public debate and submissions
to the present Inquiry apply generally to the offences in s 80.2. These include concerns
about insufficient clarity of the fault elements of the offence, leading to an overall
concern that the s 80.2 offences may capture an excessively broad range of conduct.
These more generalised concerns are dealt with in Chapters 7 and 8, while this chapter
addresses specific criticisms relating to the offence in s 80.2(5).
Sedition and vilification
9.50 Most submissions and consultations that directly addressed s 80.2(5) supported
the existence of an offence of this type.71 However, there has been considerable
support for the view that the urging of inter-group violence should not be characterised
as sedition.72 It has been argued that sedition centres on subversion of political
68
69
70
71
72
Ibid, 2–3.
Ibid, Attachment A, 6.
Ibid. Attachment A, 20.
There was also some opposition to or ambivalence towards an offence of this kind, primarily due to a
concern about the operation of anti-vilification laws generally: L Maher, Consultation, Melbourne, 4
April 2006; D Neal, Consultation, Melbourne, 4 April 2006; University of Melbourne Academics,
Consultation, Melbourne, 5 April 2006.
G McBain, Submission SED 13, 30 March 2006; Centre for Media and Communications Law, Submission
SED 32, 12 April 2006; Fitzroy Legal Service Inc, Submission SED 40, 10 April 2006; B Saul,
Submission SED 52, 14 April 2006; Australian Muslim Civil Rights Advocacy Network, Submission SED
190
Review of Sedition Laws
authority, and has little to do with inter-group violence.73 The rationale for protecting
one group from violence by another is to guarantee the dignity of the members of that
group.74 Accordingly, a large number of commentators and submissions suggest that
the appropriate place for such an offence is within the framework of antidiscrimination legislation.75 Others suggest it could be framed as a public order offence
within criminal legislation, but with the sedition link removed.76
9.51 John Pyke argues that the offence in s 80.2(5) does not belong in s 80.2 because,
if the violence urged within the community were so severe that it threatens
constitutional government, the urging will be an offence under s 80.2(1) (treason).
Alternatively, if the violence urged were less severe, such urging should not be
characterised as sedition or anything synonymous.77
9.52 The AGD submits that ‗sedition‘ is the appropriate term to identify the conduct
in s 80.2(5) because the urging of violence against groups in a society, which is made
up of different cultures and religions, constitutes ‗a very real attack on the fabric of
society‘.78 It submits:
While in some circumstances conduct that is covered by s 80.2(5) may also come
within the scope of the Commonwealth Racial Discrimination Act 1975 (RDA) the
purposes of the legislative regimes are distinctly different. Accordingly, the prospect
of overlap in any meaningful way is relatively small.79
73
74
75
76
77
78
79
54, 17 April 2006; Public Interest Advocacy Centre, Submission SED 57, 18 April 2006; National Legal
Aid, Submission SED 62, 20 April 2006; M Weinberg, Consultation, Melbourne, 3 April 2006.
B Saul, Submission SED 52, 14 April 2006; Public Interest Advocacy Centre, Submission SED 57,
18 April 2006.
Centre for Media and Communications Law, Submission SED 32, 12 April 2006; B Saul, ‗Preventing
Communal Violence: Blurring Sedition, Vilification and Terrorism‘ (2005) (November/December 2005)
Human Rights Defender (Special Issue) 15, 16.
Pax Christi, Submission SED 16, 9 April 2006; J Pyke, Submission SED 18, 10 April 2006; J Goldring,
Submission SED 21, 5 April 2006; Centre for Media and Communications Law, Submission SED 32,
12 April 2006; P Emerton, Submission SED 36, 10 April 2006; New South Wales Young Lawyers
Human Rights Committee, Submission SED 38, 10 April 2006; Fitzroy Legal Service Inc, Submission
SED 40, 10 April 2006; Chief Minister (ACT), Submission SED 44, 13 April 2006; Combined
Community Legal Centres Group (NSW) Inc, Submission SED 50, 13 April 2006; Australian Muslim
Civil Rights Advocacy Network, Submission SED 54, 17 April 2006; John Fairfax Holdings Ltd, News
Limited and Australian Associated Press, Submission SED 56, 18 April 2006; Public Interest Advocacy
Centre, Submission SED 57, 18 April 2006; Australian Vice-Chancellor‘s Committee, Submission SED
60, 25 April 2006; National Legal Aid, Submission SED 62, 20 April 2006; Human Rights Lawyers,
Consultation, Sydney, 29 March 2006; M Weinberg, Consultation, Melbourne, 3 April 2006; R Connolly
and C Connolly, Consultation, Melbourne, 5 April 2006; B Saul, ‗Preventing Communal Violence:
Blurring Sedition, Vilification and Terrorism‘ (2005) (November/December 2005) Human Rights
Defender (Special Issue) 15, 16.
Australian National University Academics, Consultation, Canberra, 27 April 2006; Human Rights and
Equal Opportunity Commission, Consultation, Sydney, 31 March 2006.
J Pyke, Submission SED 18, 10 April 2006.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
Ibid.
9. Urging Inter-Group Violence
191
9.53 The AGD argues that s 80.2(5) sends a strong message to the community that
such public acts will not be tolerated, and this offence is likely to provide a greater
deterrent than the civil provisions in the RDA or the incitement provisions in the
Criminal Code. In relation to the argument that a criminal offence of this type might be
appropriate in the RDA, the AGD notes that the Act has no criminal regime, but
instead has established civil remedies that are particularly suited to an antidiscrimination regime
where the focus is on education and conciliation, rather than punitive measures to
overcome discrimination and vilification, which are often created in situations of
misunderstanding and lack of familiarity.80
Linking inter-group violence and terrorism
9.54 In its submission to the Senate Committee inquiry, the AGD described the
urging of violence by one racial group against another as a ‗key terrorist theme‘.81 In
its submission to this Inquiry, the AGD was clear that it considers s 80.2(5) is most
appropriately expressed as a sedition offence as it ‗drives at the root cause of the
problem of terrorism by focusing on violence that is behind it‘.82
9.55 Dr Ben Saul argues that inter-group violence is conceptually distinct from
terrorism, and should be treated separately by the criminal law.83 Further, a number of
submissions criticise s 80.2(5) on the ground that presenting this offence as a counterterrorism measure stigmatises inter-group violence and reinforces the stereotyping of
certain ethnicities or religions as terrorist.84 In its 2004 report Isma—Listen, HREOC
found that Australian Arabs and Muslims are often vilified on the basis that they share
responsibility for terrorism or are potential terrorists.85 It also found that following the
terrorist attacks on 11 September 2001, Australian Muslims and Arabs suffered an
increase in physical attacks, threats of physical violence and vilification.86
80
81
82
83
84
85
86
Ibid.
Australian Government Attorney-General‘s Department, Submission 290 to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 16 November 2005, 4.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
B Saul, Submission SED 52, 14 April 2006. See also B Saul, ‗Preventing Communal Violence: Blurring
Sedition, Vilification and Terrorism‘ (2005) (November/December 2005) Human Rights Defender
(Special Issue) 15, 16.
Pax Christi, Submission SED 16, 9 April 2006; Federation of Community Legal Centres (Vic),
Submission SED 33, 10 April 2006; New South Wales Young Lawyers Human Rights Committee,
Submission SED 38, 10 April 2006; Chief Minister (ACT), Submission SED 44, 13 April 2006;
E Nekvapil, Submission SED 45, 13 April 2006; B Saul, Submission SED 52, 14 April 2006; Australian
Muslim Civil Rights Advocacy Network, Submission SED 54, 17 April 2006; R Connolly and
C Connolly, Consultation, Melbourne, 5 April 2006.
Human Rights and Equal Opportunity Commission, Isma—Listen: National Consultations on Eliminating
Prejudice Against Arab and Muslim Australians (2004), [2.2.3].
Ibid, [2.2.1]–[2.2.3].
192
Review of Sedition Laws
9.56 It has been argued that the wording of s 80.2(5) could be construed in a manner
that allows a person‘s race, religion, nationality or political opinion to be used
adversely and in a discriminatory manner.87 Concerns were expressed to the Senate
Committee inquiry and to this Inquiry that the introduction of such a provision in the
present context (where it was previously rejected as a matter of policy) is due to the
fact that the provision is concerned with protecting the majority, rather than vulnerable
racial or religious minority groups.88 For example, Pax Christi submits:
Section 80.2(5) in particular which is concerned with racial or religious violence may
also strengthen the misleading and dangerous impression that the problem of
terrorism has its roots in Islam and that the leaders of Islamic communities may be
likely to contravene the sedition provisions.89
9.57 Emrys Nekvapil submits that:
The re-enlivening of an offence of sedition, in the modern context, and as part of antiterror provisions, is clearly a response to the perceived threat of the voice of Islamic
extremism. The anxiety of the Muslim community that these new offences are
designed squarely with them in mind is apparent from submissions to the Senate
Inquiry.
The problem is not the enactment of Section 80.2(5) per se, but its enactment as part
of the newly written laws on sedition under the banner of anti-terrorism legislation.
The grave danger in characterising a racial or religious discrimination/vilification law
as political offences cannot be over-stated.90
9.58 A parallel was drawn between the effect of this offence on the Muslim
community and the effect of some summary offences on the Aboriginal and Torres
Strait Islander community—while the offences were seemingly neutral, the
circumstances of the population and decisions surrounding prosecution had a
disproportionate effect on one group.91
9.59 A number of submissions indicate that moving the offence to anti-vilification
legislation would alleviate some of the concerns relating to stigmatisation of certain
groups.92
9.60 Patrick Emerton argues that if the purpose of s 80.2(5) is the preservation of
public order, then the offence is unnecessary because inter-group violence (or
87
88
89
90
91
92
L Lasry and K Eastman, Memorandum of advice to Australian Capital Territory Chief Solicitor,
(undated), 42; P Matthew, The Anti-Terrorism Bill 2005 (2005) Human Rights and Equal Opportunity
Commission <www.hreoc.gov.au> at 29 January 2006, 6.
See, eg, P Matthew, Submission 187 to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, (undated).
Pax Christi, Submission SED 16, 9 April 2006.
E Nekvapil, Submission SED 45, 13 April 2006.
Human Rights Lawyers, Consultation, Sydney, 29 March 2006.
E Nekvapil, Submission SED 45, 13 April 2006; R Connolly and C Connolly, Consultation, Melbourne,
5 April 2006.
9. Urging Inter-Group Violence
193
incitement thereto) does not generally pose any particular threat to public order in
Australia.93
Peace, order and good government of the Commonwealth
9.61 While s 24A(g) of the Crimes Act contained the ‗peace, order and good
government of the Commonwealth‘ phrase, the offence as recommended by the Gibbs
Committee did not. The phrase was interpreted in R v Sharkey as providing
constitutional support for s 24A(g).94 The Gibbs Committee considered that
constitutional support for the altered provision could be found in the external affairs
power in s 51(xxix) of the Constitution and art 20 of the ICCPR, which requires states
to prohibit ‗any advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence‘.95 Australian Lawyers for Human
Rights also acknowledge that s 80.2(5) draws to some extent upon art 4 of CERD and
art 20 of the ICCPR.96 The basis of accepting that s 80.2(5) would be a valid law made
in conjunction with the external affairs power of the Constitution is that it is
‗reasonably capable of being considered as appropriate and adapted to implementing a
treaty to which Australia is a party‘.97
9.62 The AGD agrees that the ‗peace, order and good government of the
Commonwealth‘ phrase is not necessary to provide a ‗constitutional peg‘, but argues
that the inclusion of the requirement in the offence provides the appropriate
Commonwealth ‗flavour‘ for the offence.98
9.63 A number of commentators and submissions have questioned the ‗peace, order
and good government‘ limb of the offence. One issue raised is whether the word
‗Commonwealth‘ in s 80.2(5) is used in a geographic sense or whether it refers to the
‗matrix of institutions, rights and functions constituted under the Federal
93
94
95
96
97
98
P Emerton, Submission SED 36, 10 April 2006. Emerton suggests that while there are some examples of
terrorism overseas that can be usefully analysed in terms of group conflict (for example, Chechnya,
Israel/Palestine), this is not relevant in the Australian context, although he notes recent isolated examples
such as the Redfern and Cronulla riots.
R v Sharkey (1949) 79 CLR 121.
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991), [32.17]. For a more detailed discussion of Australia‘s obligations under international law, see
Chs 5, 7.
Australian Lawyers for Human Rights, Submission SED 47, 13 April 2006.
Toben v Jones (2004) 74 ALD 321, 328 referring to Victoria v Commonwealth (1996) 187 CLR 416.
While many submissions argue that the articles are not fully implemented, the ‗deficiency‘ in
implementation of the relevant articles is only fatal to the validity of the law if the deficiency is so
substantial ‗as to deny the law the character of a measure implementing the Convention or it is a
deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with
the Convention‘: Victoria v Commonwealth (1996) 187 CLR 416, 489.
Australian Government Attorney-General‘s Department, Consultation, Canberra, 26 April 2006. Officers
of the CDPP agreed that the phrase may not be constitutionally necessary: Commonwealth Director of
Public Prosecutions, Consultation, Canberra, 26 April 2006.
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Constitution‘.99 On the basis of the High Court‘s interpretation in Sharkey, the latter is
likely to be the preferred interpretation.
9.64 The phrase is commonly used in constitutions to convey plenary power and the
proposition that it constitutes ‗words of limitation‘ has been rejected.100 However,
when examining the predecessor of the s 80.2(5) offence in Sharkey, Dixon J expressed
concern that, while the phrase had a well-understood constitutional meaning when used
to confer a plenary power, it was meaningless as an element of a crime.101 McTiernan J
gave some indication of its meaning in the criminal context when quoting from
Stephen‘s, The Criminal Law of England:
The first and most general object of all political associations whatever is to produce
and to preserve a state of things in which the various pursuits of life may be carried on
without interruption by violence, or, according to the well-known expression of our
law, to keep the peace. Every crime is to a greater or less extent a breach of the peace,
but some tend merely to break it as against some particular person or small number of
persons, whereas others interfere with it on a wider scale, either by acts which strike
at the State itself, the established order of Government, or by acts which affect or tend
to affect the tranquillity of a considerable number of persons or an extensive local
area.102
9.65 It is of concern to some that the phrase may be interpreted to limit the scope of
the offence in s 80.2(5) to the urging of acts of large-scale violence that would damage
the Commonwealth‘s international standing or reputation,103 and that sporadic or
isolated incitements to violence may not be covered by s 80.2(5) without a broader link
to the Commonwealth.104 The Explanatory Memorandum for the Crimes Act
Amendment (Incitement to Violence) Bill 2005 (Cth) states that the ‗peace, order and
good government of the Commonwealth‘ requirement
would make it difficult to use [this offence] against those who incite violence against
minorities at a local or neighbourhood level. It might also be a barrier to prosecution
where the incitement is directed solely at a minority group, rather than a large
majority group.105
9.66 For example, if ‗Commonwealth‘ is interpreted in a geographical sense, those
involved in the urging of force or violence in the Cronulla riot in Sydney in December
2005 could be prosecuted under s 80.2(5) if SMS messages were sent across state
99
100
101
102
103
104
105
G Griffith, Sedition, Incitement and Vilification: Issues in the Current Debate: Briefing Paper No 1/06
(2006), 35.
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 10.
R v Sharkey (1949) 79 CLR 121, 152, 154.
Ibid, 158.
G Griffith, Sedition, Incitement and Vilification: Issues in the Current Debate: Briefing Paper No 1/06
(2006), 35. See also Fitzroy Legal Service Inc, Submission SED 40, 10 April 2006.
B Saul, Submission SED 52, 14 April 2006. See also B Saul, ‗Speaking of Terror: Criminalising
Incitement to Violence‘ (2005) 28 University of New South Wales Law Journal 868, 877.
Explanatory Memorandum, Crimes Act Amendment (Incitement to Violence) Bill 2005 (Cth), 4.
9. Urging Inter-Group Violence
195
boundaries.106 However, if ‗Commonwealth‘ is interpreted in an institutional and
functional sense, it may be more difficult to draw a link to s 80.2(5).107 A number of
commentators and submissions consider that this makes the provision too narrow,
particularly when considering whether the offence implements Australia‘s international
human rights obligations (this issue is discussed in more detail below).
9.67 The Federation of Community Legal Centres submits that narrowing the offence
to conduct that threatens the good order and governance of the Commonwealth is
‗misguided‘ and ‗has missed the point‘ as ‗the incitement of violence within the
community is primarily a problem for those groups that find themselves the target of
such hostility‘.108 PIAC notes that the approach promotes a ‗narrow view of human
rights by making protection from incitement to violence contingent upon the effect of
such violence on the authority of the government‘.109
9.68 However, some consider that the terminology of the ‗peace, order and good
Government of the Commonwealth‘ requirement makes s 80.2(5) too broad. If retained
as a sedition offence, the Centre for Media and Communications Law submits that the
common law requirement of incitement to violence against ‗constituted authority‘
should be substituted in place of the ‗peace, order and good Government of the
Commonwealth‘ requirement.110
Obligations under international law
9.69 Issues Paper 30 (IP 30) asked whether the offence in s 80.2(5) implements
effectively Australia‘s obligations under international law to proscribe incitement of
national, racial or religious hatred (in particular, art 20 of the ICCPR and art 4 of
CERD).111
9.70 A number of submissions welcome the federal move towards the creation of a
federal offence of racial and religious vilification, but argue that s 80.2(5) is too narrow
to provide full compliance with Australia‘s obligations under international law.
9.71 Fitzroy Legal Service raises a number of issues that would need to be addressed
before Australia‘s obligations under CERD could be implemented effectively. In
106
107
108
109
110
111
B Saul, ‗It‘s Essential to Clean Up this Mess‘, Sydney Morning Herald (Sydney), 14 December 2005, 17,
17; Commonwealth Director of Public Prosecutions, Consultation, Canberra, 26 April 2006.
Although the AGD considered there was a reasonable argument that an incident such as this had
significance beyond New South Wales: Australian Government Attorney-General‘s Department,
Consultation, Canberra, 26 April 2006.
Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006.
Public Interest Advocacy Centre, Submission SED 57, 18 April 2006.
Although it should be noted that the Centre for Media and Communications Law considers it preferable
to delete the provision from sedition offences and amend the Racial Discrimination Act 1975 (Cth):
Centre for Media and Communications Law, Submission SED 32, 12 April 2006.
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), Question 20.
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particular, it notes that s 80.2(5) proscribes only incitement to violence, and not
incitement of hatred, discrimination and ridicule more generally, and that the ‗peace,
order and good government of the Commonwealth‘ limb of the offence narrows the
application further.112 A human rights group, ARTICLE 19, expresses concern about
the link between group violence and the protection of the state.
This does not reflect the purpose of Article 20, which is a special State obligation to
take preventative measures at the horizontal level to enforce the rights to life (Article
6) and equality (Article 26). Accordingly, s 80.2(5)(b) exceeds the scope and purpose
of Article 20.113
9.72 Without commenting directly on whether s 80.2(5) implements Australia‘s
international obligations, HREOC notes that art 20 of the ICCPR is not really
concerned with public order offences but is rather directed towards anti-discrimination
and anti-vilification.114
9.73 The AGD notes that Australia has entered reservations to both art 20 of the
ICCPR and art 4 of CERD, to the effect that Australia does not consider itself bound to
enact criminal provisions addressing the advocacy of racial, national or religious
hatred. It emphasises that the enactment of s 80.2(5) is consistent with, but not required
by, Australia‘s obligations under international law.115 While acknowledging the
existence of the reservations, a number of bodies have called for the Australian
Government to remove the reservations.116
Identified groups
9.74 The AGD notes that s 80.2(5) is a modernised version of the pre-existing
s 24A(g) of the Crimes Act. Following the recommendations of the Gibbs Committee,
the language of ‗class‘ in s 24A(g) was removed and the offence was redrafted to focus
on groups in the community. The AGD submits that the move away from ‗classes‘ to
‗groups‘ has ‗advantages for national unity and identity‘.117
9.75 One submission points out that the question of which groups deserve protection
is complex and deserves more consideration:
[A]ny offence of committing violence on the basis of the perceived group affiliation
of the victim needs to carefully identify which groups are worthy of such protection.
Race is a reasonably clear example, but religion is sometimes considered
controversial (what if a religion advocates human sacrifice, for example—ought it to
be a crime distinct from ordinary assault to use force against group members in the
name of rescuing sacrificial victims?). Political affiliation is an even more
112
113
114
115
116
117
Fitzroy Legal Service Inc, Submission SED 40, 10 April 2006. See also New South Wales Young
Lawyers Human Rights Committee, Submission SED 38, 10 April 2006.
ARTICLE 19, Submission SED 14, 10 April 2006.
Human Rights and Equal Opportunity Commission, Consultation, Sydney, 31 March 2006.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
See, eg, Fitzroy Legal Service Inc, Submission SED 40, 10 April 2006.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
9. Urging Inter-Group Violence
197
controversial example—why ought it to be especially criminal to use force against
fascists, for example?118
9.76 Dr Saul queries whether incitement to violence against groups based on
‗political opinion‘ can be supported in the provision.119 If the provision‘s constitutional
validity rests on the external affairs power, it can be supported only to the extent that it
implements a treaty obligation. Saul notes that no such protection for groups based on
‗political opinion‘ is found in human rights treaties. Others query whether it would
always be appropriate to punish or protect groups based on ‗political opinion‘
advocating violence, citing Jews defending themselves against a violent fascist group
or Fretilin‘s resistance activities in pre-independence East Timor as examples.120
9.77 The inclusion of ‗religion‘ is questioned by some. While ‗religion‘ is included in
art 20 of the ICCPR, federal laws do not otherwise provide for protection from
vilification or discrimination on the basis of religion.121 One of the principle concerns
appears to be the difficulty involved in determining what constitutes a ‗religion‘ and
the reluctance to extend protection to sects or ‗newer‘ religions such as Scientology.
Because religion is seen as a matter of belief or ideas (as opposed to race or ethnicity,
which are intrinsic), there is concern that mere criticism could be caught thereby
stifling free and open public debate.122 However, these concerns have greater validity
when discussing a more general religious vilification offence, as opposed to an offence
of urging the use of force or violence against a religious group.
9.78 In a consultation, HREOC suggested that a further group of ‗national origin‘
should be added to the provision.123 This would ensure that persons who are Australian
citizens but who are identified with a particular national community will receive the
same protections as those of that national community who do not hold Australian
citizenship. For example, if there were a call to use force or violence against
‗Vietnamese‘ in the Australian community, many Vietnamese-Australians would not
be covered by the existing provision of ‗race, religion, nationality or political opinion‘
as many have taken out Australian citizenship or were born in Australia. The AGD
agreed with this suggestion.124
118
119
120
121
122
123
124
P Emerton, Submission SED 36, 10 April 2006.
B Saul, Submission SED 52, 14 April 2006.
University of Melbourne Academics, Consultation, Melbourne, 5 April 2006.
Although it is argued this is necessary for full implementation of Australia‘s obligations under art 20 of the
ICCPR: Australian Lawyers for Human Rights, Submission SED 47, 13 April 2006.
See R Chow, ‗Inciting Hatred or Merely Engaging in Religious Debate: The Need for Religious
Vilification Laws‘ (2005) 30 Alternative Law Journal 121; E Barendt, ‗Threats to Freedom of Speech in
the United Kingdom‘ (2005) 28 University of New South Wales Law Journal 895.
Human Rights and Equal Opportunity Commission, Consultation, Sydney, 31 March 2006.
Australian Government Attorney-General‘s Department, Consultation, Canberra, 26 April 2006.
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9.79 PIAC is concerned that the requirement that the urging of violence be directed to
a group with a common characteristic limits the operation to situations where those
being urged can be identified as a homogenous group in terms of race, religion,
nationality or political opinion. PIAC considers the provision may therefore miss more
general urging at large, such as through mass media or the Internet.125
9.80 Following the argument that s 80.2(5) is not an implementation of Australia‘s
international obligations, and the ‗peace, order and good government of the
Commonwealth‘ limb provides a constitutional peg, it has been suggested that it is not
necessary to link the conduct described in s 80.2(5) to race, religion or nationality.126
This would enable the inclusion of a greater range of identified groups, or a return to
the broader language of ‗class‘ used in s 24A(g).
Broader review of anti-vilification laws
9.81 A number of submissions criticise existing anti-vilification laws and pointed to a
need to review this area generally in order to develop effective responses to the
problem of inter-communal violence.
9.82 It has been argued that the existing federal and state legislative regimes are
inadequate, and that the law should address not only the incitement of violence, but
also the incitement of hatred or vilification and the perpetration of actual inter-group
violence. Saul submits:
While violence against group members can always be prosecuted as ordinary crime
under state, territory or federal law, treating group-based violence or ‗hate crimes‘ as
ordinary offences fails to recognise the additional psychological element and social
harm involved in such cases. It is not sufficient to merely consider racial or religious
motives as aggravating factors in sentencing, since that approach does not stigmatise
the offending conduct as adequately naming the conduct a racial or religious crime.127
9.83 Fitzroy Legal Service states that existing federal measures to eradicate racial
hatred, violence, discrimination and vilification are inadequate in both form and
substance.128Australian Lawyers for Human Rights submits that Australia has yet to
fully implement its obligations under art 20 of the ICCPR ‗in the sense that the
Commonwealth has failed to implement civil laws which make unlawful religious
discrimination and religious hatred in the ways it has done with respect to race‘.129
125
126
127
128
129
Public Interest Advocacy Centre, Submission SED 57, 18 April 2006. See also New South Wales Young
Lawyers Human Rights Committee, Submission SED 38, 10 April 2006.
L Lasry and K Eastman, Memorandum of advice to Australian Capital Territory Chief Solicitor,
(undated), 42.
B Saul, Submission SED 52, 14 April 2006. See also New South Wales Young Lawyers Human Rights
Committee, Submission SED 38, 10 April 2006.
Fitzroy Legal Service Inc, Submission SED 40, 10 April 2006.
Australian Lawyers for Human Rights, Submission SED 47, 13 April 2006. See also B Saul, Submission
SED 52, 14 April 2006.
9. Urging Inter-Group Violence
199
ALRC’s view
A public order offence
9.84 As discussed in Chapter 2, the ALRC does not consider that s 80.2(5) or any of
the other offences in s 80.2 should be characterised as sedition offences (see
Proposal 2–1). However, there is a need for an offence such as s 80.2(5) in
Commonwealth law. The ALRC considers that an offence based on the present
s 80.2(5) should be retained in the Criminal Code and headed ‗Urging inter-group
force or violence‘ (see Proposal 9–1).
9.85 There are examples in recent history where inter-group violence has occurred in
Australia. It is important to ensure that Australian law condemns the urging of such
violence and has the capacity to punish this conduct in appropriate cases. It should not
be necessary to wait for such anti-social activity to become more common before the
Australian Government prohibits such conduct and applies a criminal sanction—both
for reasons of deterrence as well as to provide a clear statement about where the line is
drawn between acceptable and unacceptable conduct.
9.86 Although there is a clear relationship between s 80.2(5) of the Criminal Code
and the RDA, the ALRC proposes to retain the ‗urging inter-group violence‘ offence in
the Criminal Code as a public order offence. There are two reasons why the ALRC
considers this would be preferable to moving the offence to the RDA.
9.87 First, the offence as framed has a narrow application. It applies only to the
urging of inter-group force or violence—that is, the force or violence urged must be
between two groups rather than between an individual and a group, or between
individuals. The offence is also focused on the urging of force or violence, not a more
general offence of urging hatred or vilification. Although related to anti-vilification
laws, the ALRC considers that the offence is best characterised as a public order
offence.
9.88 Another reason for maintaining s 80.2(5) in the Criminal Code is that the ALRC
considers it appropriate to retain serious criminal offences in the Criminal Code rather
than spread throughout various pieces of legislation. There is also a question whether
the RDA—which has a strong conciliation and civil remedies basis—would be the
appropriate location for serious criminal offences, even where based on racial or other
discriminatory grounds.
9.89 As outlined above, many submissions consider that the s 80.2(5) offence is too
narrow, inappropriately focuses on the state rather than the individual, and does not
fully implement Australia‘s international obligations particularly in relation to art 4 of
CERD and art 20 of the ICCPR. This does not necessarily mean that s 80.2(5) is bad
law, or that it lacks constitutional support from the external affairs power. A number of
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Review of Sedition Laws
lawyers and agencies have acknowledged that s 80.2(5) is consistent with Australia‘s
international obligations.
9.90 While supportive of the s 80.2(5) offence, the ALRC agrees that a broader range
of offences is required in order to implement fully Australia‘s international obligations.
These may include some criminal offences as well as additional civil offences.
However, it is beyond this Inquiry to examine and recommend changes to the federal
anti-discrimination regime more generally.
9.91 The ALRC notes the concerns raised about the stigmatising effect of
characterising the conduct proscribed in s 80.2(5) as sedition, as part of a package of
anti-terrorism laws. However, the provision itself has been, and should be, welcomed
into Australian law. It has value that extends beyond the current climate of terrorism,
and can be used as a statement condemning the use of force or violence against any
defined racial, national or religious group.
9.92 The ALRC considers that further initiatives are necessary in order to ensure that
the offence is appropriately characterised in the future. It is important that the
Australian Government continues to develop strategies, including educational
programs, to promote inter-communal harmony and understanding; and highlight the
existence of civil remedies in the RDA and relevant state and territory legislation. It is
preferable that such programs exist to stifle the kinds of activities that might otherwise
need to be punished using the criminal offence.
9.93 As indicated above, it is beyond the scope of this Inquiry to examine and
recommend changes to anti-discrimination law more generally. However, the ALRC
notes that, unlike other federal anti-discrimination legislation, the RDA has not been
the subject of review since its enactment in 1975.130 During this time there has been
enactment and reform of state and territory anti-discrimination laws, and at present
there are great variations in the coverage and operation of those laws across Australia.
The ALRC considers that a targeted review of the RDA would be highly desirable.
Modification of the offence
Fault elements
9.94 Chapter 8 discusses the technical construction given to the offences in s 80.2(1),
(3) and (5). There was broad support in submissions for making it clear that all of the
offences involve intentional urging of the use of force or violence. Even assuming that
the application of the general principles of criminal responsibility in the Criminal Code
130
See Productivity Commission, Review of the Disability Discrimination Act 1992 (2004). Many
components of the Sex Discrimination Act 1984 (Cth) have been reviewed as part of the ALRC inquiry on
women and the law or by the Sex Discrimination Commissioner: see, eg, Australian Law Reform
Commission, Equality Before the Law, ALRC 69 (1994); Human Rights and Equal Opportunity
Commission, Pregnant and Productive: Its a Right Not a Privilege to Work While Pregnant (1999);
Human Rights and Equal Opportunity Commission, 20 Years On: The Challenges Continue...Sexual
Harassment in the Australian Workplace (2004).
9. Urging Inter-Group Violence
201
to the sedition offences is reasonably clear, it would not be inconsistent with the way in
which the Criminal Code is drafted to state that a person commits an offence if he or
she ‗intentionally urges‘ the conduct referred to in s 80.2.
9.95 Consistent with proposals in relation to s 80.2(1) and (3),131 the ALRC proposes
that s 80.2(5) be amended to insert the word ‗intentionally‘ before the word ‗urges‘.
9.96 Chapter 8 also considers whether there should be a more concrete link between
the offences in s 80.2 and force or violence. While acknowledging the deliberate policy
decision to retain a distinction between ‗urging‘ for the purposes of s 80.2 and
incitement, the ALRC proposes that for a person to be guilty of any of the s 80.2
offences the person should intend that the force or violence urged will occur.132
Proposal 8–1, which would apply to s 80.2(5) and the other s 80.2 offences, will help
remove from the ambit of the offences rhetorical statements that a person does not
intend anyone to act upon.
Peace, order and good government of the Commonwealth
9.97 The ALRC has given careful consideration to whether the second limb of
s 80.2(5)—that the use of the force or violence would threaten the peace, order and
good government of the Commonwealth—should be retained. Retention clearly limits
the offence, and provides a ‗public order‘ character, which would be diminished
without the limb. The ALRC considers that it is appropriate to focus the offence on
public order issues related to the Commonwealth. This provides a federal offence that
is distinct from state and territory laws, and focuses on more serious inter-group
conduct that has an impact on the broader society. An array of state and territory laws
exists to cover group incidents that may not fall within the ambit of s 80.2(5), as
exhibited in the case of the Cronulla riot. Not every incident of civil unrest requires
federal intervention. Although the ALRC notes there may be gaps in existing antivilification laws, it does not consider that s 80.2(5) is the place to remedy the
deficiencies, or that removal of the ‗good government‘ limb would in any case be the
ideal solution.
9.98 While it may not be necessary to include the phrase ‗peace, order and good
government of the Commonwealth‘ for constitutional reasons, the ALRC does not
propose to remove or make any change to this limb of the offence.
Identified groups
9.99 The ALRC generally supports the modernisation of s 80.2(5) to include specific
groups as distinguishing factors. As pointed out in submissions, there may be instances
where more general urging of violence is not captured by this provision due to the need
131
132
See Proposal 8–3 and 8–6.
Proposal 8–1.
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Review of Sedition Laws
to identify a homogenous group. Other provisions exist to capture such conduct and the
ALRC considers it is appropriate to have a provision (such as s 80.2(5)) that highlights
the particular need to discourage and punish the urging of inter-group violence on the
basis of race, nationality, or religion.
9.100 Consistent with advice received from HREOC, the ALRC proposes inserting
‗national origin‘ as an additional category of ‗group‘. As noted above, there is at
present a gap in the provision relating to Australian citizens who are identified with a
particular national community. The ALRC considers that the enhancement of the
provision is consistent with art 4 of CERD and art 20 of the ICCPR. Section 80.2(6)
also should be amended in a consistent manner.
9.101 With the retention of the ‗peace, order and good government of the
Commonwealth‘ limb of the offence, the offence has two possible constitutional pegs.
This would alleviate concerns that the inclusion of ‗political opinion‘ as a
distinguishing factor has no constitutional support given its absence from art 4 of
CERD and art 20 of the ICCPR. At this stage the ALRC is not proposing to remove the
distinguishing factor of ‗political opinion‘, although would welcome further comment
on this point.
9.102 The ALRC also notes concerns regarding using ‗religion‘ as a distinguishing
factor, although does not consider the concerns persuasive in relation to an offence that
seeks to protect a religious group from being subjected to group force or violence. In
addition, in this case there is a clear basis for the inclusion of religion as a
distinguishing factor in s 80.2(5) given its history in art 20 of the ICCPR.
Other drafting issues
9.103 The meanings of ‗urges‘ and ‗force or violence‘ are discussed in detail in
Chapter 8. The ALRC does not propose changes to these aspects of s 80.2(5).
9.104 Chapter 8 also discusses the idea that, if the current offences in s 80.2 are
retained, there should be some requirement that force or violence is intended to occur
as a result of the urging. The ALRC proposal to require that the person must intend that
the urged force or violence will occur (Proposal 8–1) addresses these concerns.
However, the ALRC is interested in further comment on this issue.
9.105 The approaches taken to the issues of extraterritoriality and the requirement of
consent of the Attorney-General in relation to s 80.2(5) are dealt with in Chapter 8. The
application of a defence to s 80.2(5) is discussed in Chapter 10.
9. Urging Inter-Group Violence
203
Proposal 9–1
The heading of s 80.2(5) of the Criminal Code (Cth)
(Criminal Code) should be changed to refer to urging ‗inter-group force or
violence‘.
Proposal 9–2
Section 80.2(5) of the Criminal Code should be amended to:
•
insert the word ‗intentionally‘ before the word ‗urges‘, to clarify the fault
element applicable to urging the use of force or violence; and
•
add ‗national origin‘ to the distinguishing features of a group for the
purposes of the offence.
Proposal 9–3
As a consequence of Proposal 9–2, s 80.2(6) of the Criminal
Code should be amended to apply recklessness to the element of the offence
under s 80.2(5) that it is a group distinguished by national origin that a person
urges another to use force or violence against.
Proposal 9–4
The Australian Government should continue to pursue other
strategies, such as educational programs, to promote inter-communal harmony
and understanding.
(The relevant sections of the Criminal Code, amended as proposed, are set out
in Appendix 2.)
10. Defences and Penalties
Contents
Introduction
The good faith defences
History of the good faith defences
The meaning of good faith
Defences and the media
Defences and artistic expression
Burden of proof
Criticism of the good faith requirement
A media exemption?
ALRC‘s views
Penalties
ALRC‘s views
205
206
207
207
211
213
215
216
217
219
222
224
Introduction
10.1 This chapter presents the ALRC‘s proposals in relation to the defences provided
by s 80.3 of the Criminal Code (Cth) (Criminal Code). Section 80.3 provides defences
to treason (s 80.1) and the offences created in s 80.2, where the acts in question are
done ‗in good faith‘.
10.2 This chapter describes the scope and history of the good faith defences and the
meaning of good faith, by reference to defamation and anti-vilification law. As
discussed in this chapter, the defences in s 80.3 have been criticised for, among other
things, lack of clarity and failure to protect media reporting and artistic expression.
10.3 The ALRC proposes the repeal of the good faith defences, which are no longer
appropriate given the modifications made to the offences in s 80.2(1), (3) and (5) and
the proposed repeal of s 80.2(7) and (8). The defences should be replaced with a
provision that requires the trier of fact to take into account the context of the conduct in
question in determining whether there is an intention that the force of violence urged
will occur.
10.4 The chapter also briefly discusses the applicable penalties for the offences in
s 80.2 of the Criminal Code. The ALRC concludes that the penalties provided under
the present sedition offences are appropriate for the proposed modified offences.
206
Review of Sedition Laws
The good faith defences
10.5 There are six defences set out in s 80.3(1)(a)–(f).1 The first three defences can
be characterised broadly as dealing with aspects of political communication. Under
s 80.3(1)(a) it is a defence to try in good faith to show that certain persons are mistaken
in any of their counsels, policies or actions—the persons being the Sovereign, the
Governor-General, a governor of a state, an administrator of a territory, or their
advisers, or a person responsible for the government of another country.
10.6 Section 80.3(1)(b) provides a defence to a person who ‗points out in good faith
errors or defects‘ in any Australian government, the Constitution, Australian
legislation, or the administration of justice in Australia or another country ‗with a view
to reforming those errors or defects‘. This suggests that ‗criticism which is not
considered constructive (a subjective determination) is not protected‘.2
10.7 Section 80.3(1)(c) protects a person who, in good faith, urges another person to
‗attempt to lawfully procure a change to any matter established by law, policy or
practice‘, in Australia or another country.
10.8 Section 80.3(1)(d) is concerned with relationships between different groups in
the community. It provides that the sedition offences (most relevantly, the offence of
urging inter-group violence)3 do not apply to persons who point out in good faith any
matters that produce ‗feelings of ill-will or hostility between different groups, in order
to bring about the removal of those matters‘. It seems that, as with s 80.3(1)(b), the
criticism must be constructive—aimed at improving a state of affairs within the
community.
10.9 Under s 80.3(1)(e), there is a defence for anything done in good faith in
connection with an industrial dispute or matter. Finally, s 80.3(1)(f) provides a defence
for a person who ‗publishes in good faith a report or commentary about a matter of
public interest‘. As discussed in more detail below, the latter defence shares common
language with s 18D(c) of the Racial Discrimination Act 1975 (Cth) (RDA), which
provides a defence to an allegation of unlawful offensive behaviour based on racial
hatred.
10.10 In considering the application of the defences, the courts may have regard to any
relevant matter, including whether the acts done: were intended to be prejudicial to the
safety or defence of the Commonwealth; were intended to assist an enemy or those
1
2
3
The relevant sections of the Criminal Code (Cth) are set out in full in Appendix 1. The relevant sections
of the Code, amended as proposed in this Discussion Paper, are set out in Appendix 2.
B Saul, ‗Speaking of Terror: Criminalising Incitement to Violence‘ (2005) 28 University of New South
Wales Law Journal 868, 875.
Criminal Code (Cth) s 80.2(5).
10. Defences and Penalties
207
engaged in armed hostilities against the Australian Defence Force (ADF); or were
intended to cause violence or create public disorder or a public disturbance.4
History of the good faith defences
10.11 The provisions in s 80.3 of the Criminal Code substantially replicate those in the
repealed s 24F of the Crimes Act, which were inserted into the Crimes Act in 1920
along with the sedition offences.5 According to the Explanatory Memorandum to the
Anti-Terrorism (No 2) Bill 2005 (Cth), the only substantive difference is that greater
discretion is given to the court in considering whether an act was done in ‗good faith‘
by allowing the court to have regard to ‗any relevant matter‘ as well as a number of
specific considerations that have been carried over from s 24F.6
10.12 Another difference between the Criminal Code and repealed Crimes Act
provisions is that an additional good faith defence was inserted (s 80.3(1)(f)), which
permits publication in good faith of ‗a report or commentary about a matter of public
interest‘.7 This provision was inserted in response to media organisation concerns,
expressed to the 2005 Senate Committee inquiry,8 that they might commit a sedition
offence by reporting the views or statements of others.
10.13 As discussed in Chapter 3, the 1920 sedition provisions replicated those found in
the Criminal Code 1899 (Qld), which in turn were based on the English common law
as outlined in Stephen’s Digest of the Criminal Law.9
10.14 The concept of ‗good faith‘ in the context of sedition law is traceable to its
origins in the law of libel and defamation. As discussed in Chapter 3, the sedition
provisions of have their roots in the common law of seditious libel. At least until the
17th century, seditious libel was a sub-category of libel (written defamation) and in
18th century England, it was the government‘s chief means of controlling the press.10
The meaning of good faith
10.15 Each of the defences in s 80.3(1)(a)–(f) requires that the conduct be ‗in good
faith‘. Case law provides little guidance on the meaning of good faith in the context of
sedition.
4
5
6
7
8
9
10
Ibid s 80.3(2).
War Precautions Repeal Act 1920 (Cth) s 12.
Explanatory Memorandum, Anti-Terrorism Bill (No 2) 2005 (Cth); Criminal Code s 80.3(2).
Criminal Code (Cth) s 80.3(f). Compare Draft-in-Confidence Anti-Terrorism Bill (No 2) 2005 (Cth).
See, Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the AntiTerrorism Bill (No 2) 2005 (2005), [5.117]–[5.122].
J Stephen, A Digest of the Criminal Law (1887).
P Hamburger, ‗The Development of the Law of Seditious Libel and the Control of the Press‘ (1985) 37
Stanford Law Review 661, 725.
208
Review of Sedition Laws
10.16 Some guidance on the meaning of good faith is available by analogy from
defamation and anti-vilification law. Good faith (and the common law test of malice)
are established elements of defamation law in relation to the defence of qualified
privilege. More recently, the concept of good faith has been incorporated into statutory
exemptions relating to conduct that might constitute unlawful racial or other
vilification.11
10.17 The law in each of these areas relates to civil causes of action rather than
criminal offences. However, it has relevance in view of the history of sedition (and its
roots in common law seditious libel) and shared concerns with constraints on freedom
of expression.
Defamation law: good faith and malice
10.18 In defamation law, the protection accorded by qualified privilege is lost if the
publisher was motivated by what the common law describes as malice and—prior to
the enactment of the uniform defamation Acts12—statutory codifications of defamation
law referred to as the absence of good faith.13
10.19 For example, Queensland legislation provided that, for the purposes of general
qualified privilege:
a publication is said to be made in good faith if the matter published is relevant to the
matters the existence of which may excuse the publication in good faith of defamatory
matter; if the manner and extent of the publication does not exceed what is reasonably
sufficient for the occasion; and if the person by whom it is made is not actuated by ill
will to the person defamed, or by any other improper motive, and does not believe the
defamatory matter to be untrue.14
10.20 In the case of the privilege accorded to the publication of reports on matters of
public interest, ‗good faith‘ was defined differently. It required that the publisher is not
motivated by ill-will or other improper motive; and the manner of the publication is
such as is ordinarily and fairly used in the case of the publication of news.15 Therefore,
this privilege was not lost simply because the defendant knew that statements included
in the report were false.16
11
12
13
14
15
16
See, eg, Racial Discrimination Act 1975 (Cth) s 18D; Anti-Discrimination Act 1977 (NSW) s 20C; Racial
and Religious Tolerance Act 2001 (Vic) s 11.
Defamation Act 2005 (Vic) and cognate state and territory legislation.
Defamation Act 1889 (Qld) s 16; Defamation Act 1957 (Tas) s 16. See Law Book Company, The Laws of
Australia, vol 6 Communications, 6.1, Ch 6, [67].
Defamation Act 1889 (Qld) s 16(2). See also Defamation Act 1957 (Tas) s 16. It is said that these factors are
not dissimilar to those applied under the common law test of malice: Law Book Company, The Laws
of Australia, vol 6 Communications, 6.1, Ch 6, [89].
Defamation Act 1889 (Qld) s 13(2).
Law Book Company, The Laws of Australia, vol 6 Communications, 6.1, Ch 6, [89].
10. Defences and Penalties
209
10.21 At common law, malice renders the protection accorded by qualified privilege
unavailable.17 Briefly, malice can be shown by having either an improper motive or no
honest belief in the truth of the material—although where a publisher has no honest
belief in information or even positively disbelieves it, protection will not be lost where
a publisher is under a positive duty to pass on the defamatory information.18
10.22 The position with regard to the extended qualified privilege that is accorded to
the publication of material concerning government and political matters19 has particular
relevance to the meaning of good faith in the context of sedition law. This privilege
derives from decisions of the High Court culminating in Lange v Australian
Broadcasting Corporation.20 The right is said to be based on the interest of each
member of the Australian community in ‗in disseminating and receiving information,
opinions and arguments concerning government and political matters that affect the
people of Australia‘.21
10.23 The qualified privilege in relation to government and political matters will be
defeated, as with other qualified privilege, if the publication is actuated by malice.
However, malice differs in its application to this form of privilege. In Lange, the High
Court said that:
‗actuated by malice‘ is to be understood as signifying a publication made not for the
purpose of communicating government or political information or ideas, but for some
improper purpose.22
10.24 The Court stated that having regard to the subject matter of government and
politics, the motive of causing political damage to the plaintiff or his or her political
party cannot be regarded as improper—‗nor can the vigour of an attack or the
pungency of a defamatory statement, without more, discharge the plaintiff‘s onus of
proof of this issue‘.23
10.25 This differs from the ordinary common law concept of malice in two respects.
First, malice cannot be established by showing that the defendant did not have a belief
in the truth of what was published. Secondly, the motive of causing political damage is
not enough to establish improper motive.24
17
18
19
20
21
22
23
24
Ibid, 6.1, Ch 6, [85].
See Ibid, 6.1, Ch 6, [86].
See Ch 7.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The decision involved a reexamination of the High Court‘s previous decisions in Theophanous v Herald & Weekly Times Ltd (1994)
182 CLR 104 and Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 571.
Ibid, 574.
Ibid, 574.
Law Book Company, The Laws of Australia, vol 6 Communications, 6.1, Ch 6, [87].
210
Review of Sedition Laws
10.26 The recently agreed upon uniform defamation Acts25 preserve the common law
relating to malice. The Acts state that, for the avoidance of doubt, a defence of
qualified privilege is defeated if the plaintiff proves that the publication of the
defamatory matter was ‗actuated by malice‘.26 The general law applies to determine
whether a particular publication was actuated by malice.27
Anti-vilification laws
10.27 Commonwealth, state and territory anti-vilification legislation contains
exemptions that are, in some respects, similar to defences in defamation law and refer
to the concept of good faith. For example, s 18D of the RDA creates an exemption for:
… anything said or done reasonably and in good faith:
(a)
in the performance, exhibition or distribution of an artistic work; or
(b)
in the course of any statement, publication, discussion or debate made or held
for any genuine academic, artistic or scientific purpose or any other genuine
purpose in the public interest; or
(c)
in making or publishing:
(i)
a fair and accurate report of any event or matter of public interest; or
(ii)
a fair comment on any event or matter of public interest if the comment is
an expression of a genuine belief held by the person making the comment.
10.28 Similarly, the racial vilification provisions of the Anti-Discrimination Act 1977
(NSW) state that a ‗public act‘ is not unlawful if it is:
(a)
a fair report of a public act … or
(b)
a communication or the distribution or dissemination of any matter on an
occasion that would be subject to a defence of absolute privilege ... in
proceedings for defamation, or
(c)
… done reasonably and in good faith, for academic, artistic, scientific or
research purposes or for other purposes in the public interest, including
discussion or debate about and expositions of any act or matter.28
10.29 There is case law on the meaning of good faith in the context of anti-vilification
legislation. In Bropho v Human Rights and Equal Opportunity Commission,29 the Full
Court of the Federal Court considered the application of s 18D of the RDA. French J
held that, having regard to the public mischief to which the RDA is directed, both
subjective and objective good faith is required.30
25
26
27
28
29
30
Defamation Act 2005 (Vic) and cognate state and territory legislation.
Ibid s 30(4) and cognate state and territory legislation.
Ibid s 24(2) and cognate state and territory legislation.
Anti-Discrimination Act 1977 (NSW) s 20C(2).
Bropho v Human Rights & Equal Opportunity Commission (2004) 204 ALR 761.
Ibid, 787.
10. Defences and Penalties
211
A person acting in the exercise of a protected freedom of speech or expression under
s 18D will act in good faith if he or she is subjectively honest, and objectively viewed,
has taken a conscientious approach to advancing the exercising of that freedom in a
way that is designed to minimise the offence or insult, humiliation or intimidation
suffered by people affected by it. That is one way, not necessarily the only way, of
acting in good faith for the purpose of s 18D.31
10.30 The Bropho case was applied in Islamic Council of Victoria v Catch the Fire
Ministries Inc (Final).32 In this case an evangelical Christian group and two pastors
were found to have breached s 8 of the Racial and Religious Tolerance Act 2001 (Vic).
This provision states that it is unlawful on the ground of race to incite ‗hatred against,
serious contempt for, or revulsion or severe ridicule of‘ another person or class of
persons.
10.31 The respondents made claims about Muslim beliefs and conduct, including that
Muslims are violent, terrorist, demonic, seditious, untruthful, misogynist, paedophilic,
anti-democratic, anti-Christian and intent on taking over Australia.33 The Victorian
Civil and Administrative Tribunal found that the statutory exemptions for conduct
engaged in ‗reasonably and in good faith‘34 were unavailable in the circumstances.
Higgins J found that the ‗unbalanced‘ presentation of a seminar about Islam evidenced
absence of good faith, whether viewed subjectively or objectively.35
Defences and the media
10.32 A particular focus of concern has been on whether the defences in s 80.3 of the
Criminal Code provide adequate protection for media organisations and journalists.
Media organisations express concern that the good faith defences may not be
sufficiently broad to cover the publication of the views of others—for example, in the
context of news and current affairs or related commentary, opinion and analysis.
10.33 Section 80.3(1)(f) is the defence most likely to apply to the media. The effect of
this provision is that a person who ‗publishes in good faith a report or commentary
about a matter of public interest‘ is not guilty of an offence under s 80.2.
31
32
33
34
35
Ibid, 787. Carr J stated (at 803) that the focus of the inquiry should be ‗an objective consideration of all
the evidence, but that the evidence of a person‘s state of mind may also be relevant‘. Lee J held (at 795)
that ‗good faith must be assessed, in part, by having regard to the subjective purpose of the publisher but
overall it is an objective determination‘.
Islamic Council of Victoria v Catch the Fire Ministries Inc (2005) EOC 93–377.
B Saul, ‗Speaking of Terror: Criminalising Incitement to Violence‘ (2005) 28 University of New South
Wales Law Journal 868, 878.
Racial and Religious Tolerance Act 2001 (Vic) s 11.
Islamic Council of Victoria v Catch the Fire Ministries Inc (2005) EOC 93–377, [389]. In August 2005,
the respondents were granted leave to appeal to the Victorian Court of Appeal.
212
Review of Sedition Laws
10.34 As discussed above, the meaning of good faith in sedition law is unclear. On one
view, good faith is a legal term of art (derived from defamation law), which is difficult
to apply in another context. It is suggested that the requirement to demonstrate good
faith in the context of media reports:
is likely to be extraordinarily difficult if not impossible to satisfy in practice,
particularly in relation to republication of third-party statements, as it may readily be
negatived by, for example, a perceived lack of proportion or congruence between the
opinion expressed and the facts within the publisher‘s knowledge at the time of
publication.36
10.35 A related concern is that media organisations or journalists may be required to
reveal information about the sources of information and the integrity of those sources
in order to show good faith.37 This is said to raise similar concerns as in defamation
litigation where a media organisation claiming the defence of ‗honest opinion‘ may
need to prove that the opinion was based on ‗proper material‘.38 The possibility that
sources may need to be revealed to defend sedition charges may chill media reporting
of certain views and affect the willingness of individuals to provide their views to the
media.39
10.36 Submissions to this Inquiry also question the effectiveness of the defences in
protecting media organisations and journalists.40 For example, the Chief Minister of the
ACT observes that what amounts to ‗publishing‘ is not clear:
Although paragraph (1)(f) may protect media reporting and comment it does not
appear to excuse similar (oral) comment or reporting that may occur in the context of
public discussion or debate. Public discussions concerning the comments of others
would not appear to have the protection of paragraph 1(f) even if the person repeated
the comments (which might be said to be seditious) to do no more than to advance the
discussion.41
36
37
38
39
40
41
John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006.
Media Organisations, Consultation, Sydney, 28 March 2006.
Under s 31(3) of the uniform defamation Acts it is a defence to the publication of defamatory matter if the
defendant proves that: (a) the matter was an expression of opinion of another person, rather than a
statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on
proper material.
In this context, the ALRC recommended in 2005 that the uniform Evidence Acts should be amended to
provide for a qualifed professional confidential relationship privilege, applicable to confidential
relationships, including between journalists and their sources: Australian Law Reform Commission, New
South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law,
ALRC 102, NSWLRC 112, VLRC FR (2005), Ch 15, Rec 15–1.
See, eg, ARTICLE 19, Submission SED 14, 10 April 2006; Victoria Legal Aid, Submission SED 43,
13 April 2006; John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission
SED 56, 18 April 2006; Chief Minister (ACT), Submission SED 44, 13 April 2006; Public Interest
Advocacy Centre, Submission SED 57, 18 April 2006; B Saul, Submission SED 52, 14 April 2006; The
Cameron Creswell Agency Pty Ltd, Submission SED 26, 10 April 2006.
Chief Minister (ACT), Submission SED 44, 13 April 2006.
10. Defences and Penalties
213
10.37 The Public Interest Advocacy Centre notes that this defence applies only to a
‗report‘ or ‗commentary‘ and may not include other forms of communication such as
satire.42 Dr Saul states that the defence may be too narrow because it allows judges to
‗second-guess expert journalists on what matters are thought to be in the public
interest‘.43
10.38 Fairfax, News Ltd and AAP express concern about the operation of s 80.3
generally because, in practice, it may be ‗necessary for a publisher to negative
recklessness in order to succeed under the defence‘. This view is based on an
understanding that, in defamation law, good faith can be defeated by mere
recklessness.44 Therefore, to the extent that recklessness is the fault element under the
s 80.2 offences, once the requisite fault element has been proven, the good faith
defence will fail.45
10.39 The Australian Government Attorney-General‘s Department‘s (AGD) position
is that the good faith defences adequately protect journalists and media organisations as
the defence applies where a communication is ‗merely about criticising government
policy or publishing reports or commentary on public interest matters‘.46
10.40 In this context, the ALRC notes that, in interpreting the scope of the good faith
defences, courts may be influenced by the implied constitutional right of
communication concerning government and political matters.47 The ambit of the right
is discussed in more detail in Chapter 7.
Defences and artistic expression
10.41 Media and arts organisations also focus on the perceived threat to artistic
expression posed by sedition laws. Concerns have been expressed that the defences do
not provide adequate protection, for example, in relation to satire, theatre and comedy
using irony, sarcasm and ridicule. Such expression may not be ‗constructive‘—that is,
with a view to reforming political errors or defects as required by s 80.3(b)—nor in
good faith, as the purpose may be (at least in the first instance) to ridicule or hold
political institutions in contempt.
42
43
44
45
46
47
Public Interest Advocacy Centre, Submission SED 57, 18 April 2006.
B Saul, Submission SED 52, 14 April 2006.
See Australian Consolidated Press v Uren (1966) 117 CLR 185. The High Court considered the meaning
of ‗good faith‘ for the purposes of the defence of qualified privilege under the Defamation Act 1958
(NSW).
The ALRC observes that, as discussed in Ch 8, recklessness is the fault element only in relation to some
of the physical elements required to constitute the offences and this position will be clarified by the
ALRC‘s proposals.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The power of a court to read down
legislation that may be inconsistent with the Constitution is discussed in Coleman v Power (2004) 220
CLR 1.
214
Review of Sedition Laws
10.42 The defences in s 80.3 do not make any special provision for artistic expression.
Submissions to the Inquiry note that artists are often critical of the Government and the
established order and that it is much more difficult to determine whether or not forms
of artistic expression are ‗urging‘ violence than in the case of the spoken or written
word.48 For example, visual art may be open to multiple and conflicting interpretations,
and dramatic arts may rely on hyperbole to accentuate the issues. Other concerns
include that the phrase ‗report or commentary‘ in s 80.3(1)(f) is unlikely to cover
artistic expression,49 and that ‗publishing‘ may not extend to audio-visual content.50
10.43 Submissions to the Inquiry argue that the nature of artistic work expressly
should be recognised and protected, as in the RDA provisions.51 Section 18D provides
an exemption for anything said or done reasonably and in good faith ‗in the
performance, exhibition or distribution of an artistic work‘ or in the course of any
statement, publication, discussion or debate made or held for any ‗genuine artistic
purpose‘.
10.44 In response to suggestions that artistic expression may not be covered by the
defences, the AGD highlighted that the prosecution must prove beyond reasonable
doubt that the person intended to urge the use of force or violence, or intended to assist
an enemy of Australia. The Department observed, in relation to a hypothetical scenario
about the positive portrayal of a suicide bomber in a painting or a play, that:52
A positive portrayal could be for many other reasons – it might be to do with the
person‘s appalling poverty, it could be to do with the innocence of the child in the
image who has been exploited by the cruel directors of the relevant terrorist
organisation. A painting, short of one that has the words, ‗it is your duty to do
likewise‘ emblazoned next to the image, will not even get off first base in a
prosecution for the sedition offence. The same is also true of plays and other forms of
art, as well as educative material.53
10.45 The AGD referred to the danger wholesale exemptions or ‗special defences‘
might allow terrorists ‗to use education, the arts and journalism as a shield for their
activities‘.54
48
49
50
51
52
53
54
Public Interest Advocacy Centre, Submission SED 57, 18 April 2006; Pax Christi, Submission SED 16,
9 April 2006.
Human Rights Lawyers, Consultation, Sydney, 29 March 2006.
Confidential, Submission SED 22, 3 May 2006.
Media and Arts Organisations, Consultation, Sydney, 29 March 2006; Human Rights Lawyers,
Consultation, Sydney, 29 March 2006; Public Interest Advocacy Centre, Submission SED 57, 18 April
2006; Australian Major Performing Arts Group, Submission SED 61, 16 April 2006; National Legal Aid,
Submission SED 62, 20 April 2006; Confidential, Submission SED 22, 3 May 2006; National Association for
the Visual Arts, Submission SED 30, 11 April 2006; Australia Council for the Arts, Submission SED
34, 11 April 2006.
Australian Government Attorney-General‘s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005.
Ibid.
Ibid.
10. Defences and Penalties
215
Burden of proof
10.46 IP 30 noted concerns expressed to the 2005 Senate Committee inquiry that the
wording of the defences in s 80.3 might shift the burden of proof onto the defendant.55
In response, the AGD noted that, as is standard practice under Australian evidence law,
the defendant only must satisfy the evidential burden that there is a reasonable
possibility that the defence exists:
The defences do not shift the legal burden of proof to the defence. The defence has to
satisfy the evidential burden. This means the burden of adducing or pointing to
evidence that suggests a reasonable possibility that the defence exists (s 13.3(6) of the
Criminal Code). Once the defence establishes that this reasonable possibility exists,
the prosecution has to prove the defence does not exist beyond reasonable doubt. The
prosecution takes this into account when making the initial decision to prosecute. No
prosecutor goes to court without being in a position to counter defences of this
nature.56
10.47 Section 13.3 of the Criminal Code provides:
(1)
Subject to section 13.4, a burden of proof that a law imposes on a defendant is
an evidential burden only. …
(3)
A defendant who wishes to rely on any exception, exemption, excuse,
qualification or justification provided by the law creating an offence bears an
evidential burden in relation to that matter. The exception, exemption, excuse,
qualification or justification need not accompany the description of the offence.
...
(6)
In this Code:
evidential burden, in relation to a matter, means the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter exists
or does not exist.
10.48 In the context of the defence in s 80.3, once the accused has satisfied the
evidential burden by raising a reasonable possibility, the ultimate burden shifts to the
prosecution to negate that defence beyond reasonable doubt.57 The published policy of
the AGD is that the evidential onus only should be placed on the defendant
where the matter is peculiarly within the knowledge of the defendant; and is
significantly more difficult and costly for the prosecution to disprove than for the
defendant to establish.58
55
56
57
58
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), [3.69].
Australian Government Attorney-General‘s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005, 3–4.
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [5.145].
Australian Government Attorney-General‘s Department, A Guide to Framing Commonwealth Offences:
Civil Penalties and Enforcement Powers (2004), Part 4.6.
216
Review of Sedition Laws
10.49 Some submissions to the Inquiry continue to express concern about the burden
of proof in proceedings under s 80.2.59 Patrick Emerton submits that ‗in a liberal
democracy, a dissenter should not bear even an evidential burden with respect to the
legitimacy of speech‘.60 Rather, offences that criminalise speech should be defined
with sufficient precision so as not to interfere with free speech.61
Criticism of the good faith requirement
10.50 Some who favour extending the defences consider that the term ‗good faith‘ is
inappropriate and should be removed.62 As discussed above, the term ‗good faith‘ is a
requirement of the defences under the RDA, as well as under s 80.3 of the Criminal
Code.
10.51 However, s 18D of the RDA does not provide a defence to a criminal offence.
Rather, it provides exemptions in relation to certain conduct (offensive behaviour
based on racial hatred) that would otherwise amount to a civil wrong in relation to
which a complaint may be made to the Human Rights and Equal Opportunity
Commission.63 Similarly, the New South Wales defences64 do not apply to the criminal
offences of serious vilification65 (where the incitement is by means that include inciting
or threatening physical harm to persons or property) but only to conduct that is stated
to be ‗unlawful‘. There is no express statutory defence to the criminal offences, beyond
those generally available in criminal law.66
10.52 The New South Wales Council for Civil Liberties criticises the good faith
requirement as an inappropriate element in a defence to a criminal offence leading to
possible imprisonment:
The requirement for good faith in the various defences … suggests that if any action
was taken for an ulterior motive, then the defences would not apply even though to
any other observer it would appear that the person was engaged in legitimate political
activity.67
59
60
61
62
63
64
65
66
67
See, eg, Federation of Community Legal Centres (Vic), Submission SED 33, 10 April 2006; P Emerton,
Submission SED 36, 10 April 2006; John Fairfax Holdings Ltd, News Limited and Australian Associated
Press, Submission SED 56, 18 April 2006.
P Emerton, Submission SED 36, 10 April 2006.
Ibid.
Human Rights Lawyers, Consultation, Sydney, 29 March 2006; Federation of Community Legal Centres
(Vic), Submission SED 33, 10 April 2006; New South Wales Council for Civil Liberties Inc, Submission
SED 39, 10 April 2006; Australian Lawyers for Human Rights, Submission SED 47, 13 April 2006; John
Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006.
See Racial Discrimination Act 1975 (Cth) s 18C; Human Rights and Equal Opportunity Commission Act
1986 (Cth) Pt IIB.
See, eg, Anti-Discrimination Act 1977 (NSW) s 20C(2).
Ibid s 20D.
Ibid s 20D.
New South Wales Council for Civil Liberties Inc, Submission SED 39, 10 April 2006.
10. Defences and Penalties
217
10.53 Fairfax, News Ltd and AAP submit that ‗good faith‘ is a term of art, and as such
will import into the criminal law ‗singularly inappropriate matters of defeasance which
belong to the civil law, in particular the law of defamation‘. These media organisations
do not support a defence based on the RDA unless the words ‗reasonably and in good
faith‘ are excised.68
10.54 In contrast, the AGD advises that the Government does not want to remove the
concept of ‗good faith‘ from the defence:
To do so would open the door to people suggesting that it was legitimate to urge the
use of force or violence to procure changes in policy. The use of the term ‗good faith‘
in the defence points to the real motivation of the person.69
A media exemption?
10.55 Submissions to the Inquiry suggest that the Criminal Code could be amended to
make clear that the s 80.2 offence provisions ‗are neither intended nor designed to
prevent journalists from reporting, nor to impede the free flow and expression of
opinion in the media‘.70
10.56 Media organisations suggest that the media and journalists should be exempt
from the ambit of the offences.71 In this context, Fairfax, News Ltd and AAP highlight
precedents for such media exemptions in the Trade Practices Act 1974 (Cth) and the
Privacy Act 1988 (Cth):
We suggest a media-specific exception which makes clear that any act or omission in
the course of, for the purposes of, or associated or in connection with the reporting or
publication of news or current affairs, opinion, comment or artistic expression does
not amount to and is not capable of evidencing a seditious intent for the purposes of
Crimes Act section 30A (3) or of amounting to a breach, or conspiracy to breach, any
of the offence provisions set out in section [80.2].72
10.57 Fairfax, News Ltd and AAP also state that such an exemption should be ‗wide
enough to ensure freedom from liability for contributors, including letter writers,
68
69
70
71
72
John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006.
Australian Government Attorney-General‘s Department, Submission 290A to Senate Inquiry into AntiTerrorism Bill (No 2) 2005, 22 November 2005.
John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006; Australian Broadcasting Corporation, Submission SED 49, 20 April 2006.
Australian Press Council Office, Submission SED 48, 13 April 2006; John Fairfax Holdings Ltd, News
Limited and Australian Associated Press, Submission SED 56, 18 April 2006; Australian Broadcasting
Corporation, Submission SED 49, 20 April 2006; Free TV Australia, Submission SED 59, 19 April 2006;
Australian Major Performing Arts Group, Submission SED 61, 16 April 2006.
John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006. Similar views are expressed by other media organisations: Australian Press Council Office,
Submission SED 48, 13 April 2006; Australian Broadcasting Corporation, Submission SED 49, 20 April
2006; Free TV Australia, Submission SED 59, 19 April 2006.
218
Review of Sedition Laws
arising out of publication of their views in the media‘.73 Similarly, the Press Council
states that a media exemption would not be sufficient in the absence of protection for
‗artists, freelance writers, webloggers and other citizens who engage in expressive
conduct‘.74
10.58 Other submissions oppose a media exemption. For example, the National
Association for the Visual Arts states that the scope of such an exemption—in terms of
the people to whom the exemption would apply—is difficult to determine and involves
a high degree of subjectivity.75 Further, it would be anomalous for the media to be
permitted to engage in conduct that would be criminal, if committed by anyone else.76
10.59 The AGD advises that:
The Government does not want to introduce a defence that specifically applies to
journalists or other professions. It is preferable for the whole community to rely on
the same defence. The danger with using special defences is that the terrorists may
attempt to use that defence as a shield for their activities.77
10.60 The ALRC notes that the suggested precedents for a media exemption come
from areas of civil regulation, and do not concern criminal offences. The Privacy Act
provides that an act done, or practice engaged in, by a ‗media organisation‘ is an
‗exempt act or practice‘ for the purposes of the Act if done by the organisation ‗in the
course of journalism‘ and the organisation is publicly committed to self-regulatory
privacy standards.78 A media organisation is defined as:
an organisation whose activities consist of or include the collection, preparation for
dissemination or dissemination of the following material for the purpose of making it
available to the public:
(a) material having the character of news, current affairs, information or a
documentary;
(b) material consisting of commentary or opinion on, or analysis of, news, current
affairs, information or a documentary.79
10.61 Under the TPA, ‗prescribed information providers‘ are exempt from compliance
with some of the consumer protection provisions of Part V of the TPA.80 A prescribed
information provider is defined as ‗a person who carries on a business of providing
information‘.81
73
74
75
76
77
78
79
80
81
John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006.
Australian Press Council Office, Submission SED 48, 13 April 2006.
National Association for the Visual Arts, Submission SED 30, 11 April 2006.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
Ibid.
Privacy Act 1988 (Cth) s 7B(4).
Ibid s 6.
Trade Practices Act 1974 (Cth) s 65A.
Ibid s 65A(3).
10. Defences and Penalties
219
ALRC’s views
10.62 Discussion concerning the defences in s 80.3 of the Criminal Code has focused
on the ambit of the defences (in terms of the activities covered) and on the concept of
the good faith itself—and whether this should be retained.
10.63 The s 80.3 defences are criticised for being too limited. It is suggested that while
the defences would likely protect much political expression, the protection for
academic, educational, artistic, scientific, religious, journalistic or other public interest
purposes is significantly more limited.82
10.64 The Senate Committee recommended that, should the new sedition offences be
introduced, the defence for acts done in good faith should be amended to extend the
defence to include statements for journalistic, educational, artistic, scientific, religious
or public interest purposes (along the lines of the defence in s 18D of the RDA).83
Submissions to the Inquiry agree that the more elaborated defences under s 18D of the
RDA provide a better model, by extending the defences to cover a broader range of
activity.84
10.65 The Senate Committee also recommended that the words ‗in good faith‘ should
be removed from the defences,85 and this suggestion receives some support in
submissions to this Inquiry.86
10.66 As discussed above, the concept of good faith in sedition law has its origins in
seditious libel. In modern civil defamation law, good faith is more often expressed as
the requirement for absence of malice. It has been claimed that reliance on good faith
as a defence in relation to criminal offences is anomalous and inappropriate.87
82
83
84
85
86
87
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [5.126].
Ibid, [5.175], Rec 28.
Centre for Media and Communications Law, Submission SED 32, 12 April 2006; Confidential,
Submission SED 22, 3 May 2006; Media Entertainment and Arts Alliance, Submission SED 28, 10 April
2006; Australian Writers‘ Guild, Submission SED 29, 11 April 2006; Victoria Legal Aid, Submission
SED 43, 13 April 2006 Arts Law Centre of Australia, Submission SED 46, 13 April 2006; Australian
Vice-Chancellor‘s Committee, Submission SED 60, 25 April 2006; N Roxton Shadow Attorney-General,
Submission SED 63, 28 April 2006.
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [5.175], Rec 28.
Human Rights Lawyers, Consultation, Sydney, 29 March 2006; Federation of Community Legal Centres
(Vic), Submission SED 33, 10 April 2006; New South Wales Council for Civil Liberties Inc, Submission
SED 39, 10 April 2006; Australian Lawyers for Human Rights, Submission SED 47, 13 April 2006; John
Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006.
Good faith is used in some other Criminal Code offences. See, eg, Criminal Code (Cth) ss 71.8, 71.15:
defence to a charge of unlawful sexual penetration that the sexual penetration was ‗carried out in the
course of a procedure in good faith for medical or hygienic purposes‘. See also s 474.6, which provides
220
Review of Sedition Laws
10.67 The ALRC considers that the good faith requirement is an anachronism. The
statutory good faith defences came into being in 1920, when the sedition offences
themselves were enacted. Critically, at that time, the sedition offences did not require
proof of subjective intention or incitement to violence or public disturbance.88
10.68 Arguably, the good faith defences made sense when it was not necessary to
prove intention. In contrast, s 80.2(1), (3) and (5) require a person to have an intention
to urge force or violence.89 It is difficult to envisage circumstances in which a person
acts in good faith for purposes set out in s 80.3, yet intends to urge force or violence to
overthrow the Constitution, interfere with electoral processes or promote inter-group
violence. Generally, the good faith requirement is not needed because the elements of
the offence are not made out in the first place.
10.69 It is also clear that the way in which the defences are drafted reflects the more
deferential political and social environment in which sedition offences emerged. For
example, while s 80.3(1)(a) refers to showing that any of the named persons is
‗mistaken‘, it is not sufficient to show that such a person is, for example, corrupt,
biased or dishonest. Further, in order to rely on the defence in s 80.3(1)(b), a person
must have a ‗view to reforming‘ the errors or defects pointed out; and under
s 80.3(1)(d) the person must be seeking to ‗bring about the removal‘ of the matters
pointed out. A requirement that acts urging the use of force or violence be done with a
‗constructive‘ political or social purpose in order for a defence to be available makes
little sense.
10.70 Rather than attempt to protect freedom of expression through a ‗defence‘ that
arises after a person has been found to have ‗technically‘ committed a sedition offence,
the ALRC considers it would be better in principle and in practice to reframe the
criminal offences in such a way that they do not extend to legitimate activities or
unduly impinge on freedom of expression in the first place. In other words, the focus
should be on proving that a person intentionally urges the use of force or violence (in
the specified circumstances), with the intention that the force or violence urged will
occur (see Proposal 8–1).
10.71 Further, the ALRC proposes that in considering whether a person has such an
intention, the trier of fact should be required explicitly to take into account whether the
conduct was done:
88
89
that a law enforcement officer ‗acting in good faith in the course of his or her duties‘ is not criminally
responsible for offences of interfering with telecommunications facilities; s 474.21, which creates
defences in respect of child pornography material; and s 474.30, which creates defences for National
Relay Service employees and emergency call persons.
See L Maher, ‗The Use and Abuse of Sedition‘ (1992) 14 Sydney Law Review 287, 290.
The ALRC proposes to clarify the application of intention as the fault element of the offences in
s 80.2(1), (3) and (5). See Ch 8.
10. Defences and Penalties
221
•
in the performance, exhibition or distribution of an artistic work; or
•
in the course of any statement, publication, discussion or debate made or held
for any genuine academic, artistic or scientific purpose or any other genuine
purpose in the public interest; or
•
in connection with an industrial dispute or an industrial matter; or
•
in publishing a report or commentary about a matter of public interest.
10.72 The proposed new provision, set out in Proposal 10–2 below, draws from words
used in the RDA defences90 and existing s 80.3(1)(e)–(f) of the Criminal Code. The
ALRC also observes that s 100.1(3) of the Criminal Code, which comprises part of the
definition of a terrorist act for the purposes of the terrorist offences in Part 5.3,
provides, in effect, that action is not terrorism if it is ‗advocacy, protest, dissent or
industrial action‘ and ‗is not intended‘ to cause physical harm or a serious risk to the
health or safety of the public. The ALRC‘s approach to reform of s 80.3 takes a
consistent approach—focusing on intention and context in the formulation of the
offences rather than on elaborate defences.
10.73 The ALRC does not believe that a case has been made for any blanket
exemption for media organisations or journalists. The general principles of corporate
criminal responsibility under the Criminal Code provide that the Code applies to
bodies corporate in the same way as it applies to individuals, with such modifications
as are made necessary by the fact that criminal liability is being imposed on bodies
corporate rather than individuals.91
10.74 The provisions cited as precedents for a media exemption do not relate to
criminal offences but exempt organisations from compliance with regulatory regimes.
There is no precedent for exempting classes of persons or bodies corporate, defined by
occupation or business activity, from the ambit of an indictable criminal offence.
Proposal 10–1
Section 80.3 of the Criminal Code (Cth) (Criminal Code),
concerning the defence of ‗good faith‘, should be repealed.
90
91
See Racial Discrimination Act 1975 (Cth) s 18D(a)–(b).
Criminal Code (Cth) s 12.1. Where intention, knowledge or recklessness is a fault element in relation to a
physical element of an offence (as is the case with the sedition offences), that fault element must be
attributed to a body corporate that ‗expressly, tacitly or impliedly authorised or permitted the commission
of the offence‘: Criminal Code (Cth) s 12.3(1).
222
Review of Sedition Laws
Proposal 10–2 Section 80.2 of the Criminal Code should be amended to
provide that in considering whether a person intends that the urged force or
violence will occur, the trier of fact must take into account whether the conduct
was done (i) in the performance, exhibition or distribution of an artistic work; or
(ii) in the course of any statement, publication, discussion or debate made or
held for any genuine academic, artistic or scientific purpose or any other
genuine purpose in the public interest; or (iii) in connection with an industrial
dispute or an industrial matter; or (iv) in publishing a report or commentary
about a matter of public interest; and may have regard to any relevant matter.
Proposal 10–3 A note should be inserted after each of the offences in
s 80.2(1), (3) and (5) of the Criminal Code drawing attention to the proposed
new provisions regarding proof of intention that the force or violence urged will
occur.
(The relevant sections of the Criminal Code, amended as proposed, are set out
in Appendix 2.)
Penalties
10.75 Each of the five sedition offences in s 80.2 of the Criminal Code carries a
maximum penalty of imprisonment of seven years. This follows a recommendation of
the Gibbs Committee, which argued that ‗the more specific nature of the proposed
offence[s]‘ warranted an increase from the maximum penalty of imprisonment for
three years specified for the old sedition offences under the Crimes Act, ss 24A–24D.92
10.76 These penalties may be compared with the maximum periods of imprisonment
for the following Criminal Code offences:
•
treason—life;93
•
espionage—25 years;94
•
engaging in a terrorist act—life;95
•
directing the activities of a terrorist organisation—25 years;96
92
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991), 307, [32.19].
Criminal Code (Cth) s 80.1.
Ibid s 91.1.
Ibid s 101.1.
Ibid s 102.2.
93
94
95
96
10. Defences and Penalties
•
membership of a terrorist organisation—10 years;97
•
getting funds for a terrorist organisation—25 years.98
223
10.77 A person who urges the commission of these offences is guilty of the offence of
incitement. Under s 11.4 of the Criminal Code the penalty for incitement is set with
reference to the maximum penalty for the offence incited, as follows:
•
if the offence incited is punishable by life imprisonment—10 years;
•
if the offence incited is punishable by imprisonment for 14 years or more—7
years;
•
if the offence incited is punishable by imprisonment for 10 years or more (but
less than 14 years)—5 years; or
•
in other cases—3 years or for the maximum term of imprisonment for the
offence incited, whichever is the lesser.
10.78 Section 4B(2) of the Crimes Act sets out a formula that can be applied to
determine the maximum pecuniary penalty for an offence where the provision creating
the offence refers only to a penalty of imprisonment. In addition, s 4(2A) states that if
an offence provides for imprisonment for life, the court may impose a maximum
pecuniary penalty of 2,000 penalty units.99
10.79 IP 30 asked whether the maximum penalties for the offences in s 80.2 of the
Criminal Code are appropriate.100 Bearing in mind that most submissions favour the
abolition of the sedition offences, it is perhaps unsurprising that many also considered
that the penalties were too high101 and should not exceed the maximum of three years
imprisonment, as provided under the repealed Crimes Act provisions.102
10.80 There is recognition that the appropriateness of the maximum penalties may
change if the offences are narrowed to apply only to the urging of force or violence.
For example, ARTICLE 19 submits:
97
98
99
100
101
102
Ibid s 102.3.
Ibid s 102.6.
See Australian Law Reform Commission, Sentencing of Federal Offenders, DP 70 (2005), Ch 7. A
penalty unit for the purpose of Commonwealth offences is $110: Crimes Act 1914 (Cth) s 4AA.
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), Ch 7, Question 10.
Pax Christi, Submission SED 16, 9 April 2006; A Steel, Submission SED 23, 18 April 2006; Australian
Writers‘ Guild, Submission SED 29, 11 April 2006; Federation of Community Legal Centres (Vic),
Submission SED 33, 10 April 2006; Victoria Legal Aid, Submission SED 43, 13 April 2006.
Australian Writers‘ Guild, Submission SED 29, 11 April 2006; Victoria Legal Aid, Submission SED 43,
13 April 2006.
224
Review of Sedition Laws
if custodial sanction were ever to be justified for a s 80.2 offence, the provisions of
s 80.2 would need to be much more narrowly drawn, with a direct and immediate
connection between an intention to incite imminent violence and a likelihood or
occurrence of such violence. Furthermore, we would recommend that the use of
custodial sanctions be limited to the most serious of the scale of the offences, and that
it should be a discretionary rather than a mandatory penalty, so as to allow for a
proper consideration of the full appropriateness of applying a custodial penalty in the
individual case.103
10.81 Mr Alex Steel states that the maximum penalty for the s 80.2(1) offence is in
line with the penalty scheme set out in the Criminal Code for incitement offences. He
observes:
The basic approach of the Code appears to be to set a maximum of 10 years
imprisonment as a default penalty and then increase or decrease depending on the
offence. Inchoate offences are given lesser penalties. Incitement to a crime with a
maximum life imprisonment has a maximum penalty of 10 years imprisonment … As
urging the overthrow of the government might not incite an act of treason the lesser
penalty of a maximum 7 years is appropriate.104
10.82 However, Mr Steel considers that the maximum penalties for the offences in
s 80.2(3) and (5) are not appropriate when compared with offences under the s 327 of
the Commonwealth Electoral Act 1914 (Cth)105 and most State assault offences—the
penalties for which are set considerably lower.
10.83 The AGD refers to the conclusions of the Gibbs Committee and advises that the
Government regards the conduct covered by the offences as ‗sufficiently serious to
warrant an increase in the penalty from 3 years to 7 years imprisonment‘. The AGD
also notes that the imprisonment period is consistent with the penalty in the equivalent
new offence in the United Kingdom.106
ALRC’s views
10.84 The ALRC does not propose any change to the maximum penalties for the
offences in s 80.2(1), (3) or (5) of the Criminal Code, as modified by the proposals in
this Discussion Paper. The ALRC does not consider that the existing penalties are
disproportionate to the seriousness of these offences. In fact, on one view, if the
offences are narrowed as proposed, the maximum penalties may not adequately reflect
the seriousness of the conduct.107
10.85 There are stronger arguments that the penalties are inappropriate for the offences
in s 80.3(7) and (8), which require no link with force or violence—but the ALRC
proposes that these offences be repealed.
103
104
105
106
107
ARTICLE 19, Submission SED 14, 10 April 2006.
A Steel, Submission SED 23, 18 April 2006.
However, this offence need not involve the use of force or violence.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
M Weinberg, Consultation, Melbourne, 3 April 2006.
10. Defences and Penalties
225
10.86 The ALRC notes that, in February 2006, the Australian Government announced
a review of criminal penalties in Commonwealth legislation. This review will, among
other things, assess the appropriateness of Commonwealth criminal penalties in the
light of comparisons with relevant state and territory criminal penalties and
international best practice and seek to understand community expectations about
penalising criminal offences.108 The review team is due to report to the Government by
the end of 2006.
108
See Australian Government Attorney-General's Department, Review of Criminal Penalties in
Commonwealth Legislation (2006) Australian Government Attorney-General's Department <www.ag.
gov.au/penalties> at 23 March 2006.
11. Unlawful Associations
Contents
Introduction
Unlawful associations provisions
History of the unlawful associations provisions
Criticisms of the unlawful associations provisions
Terrorist organisations under the Criminal Code
Comparing the unlawful associations and terrorist organisation provisions
ALRC‘s views
Other offences under Part IIA
227
228
230
230
234
237
239
240
Introduction
11.1 The Terms of Reference direct the ALRC to consider the operation of Part IIA
of the Crimes Act 1914 (Cth) dealing with unlawful associations.
11.2 Part IIA was inserted into the Crimes Act in 1926, apparently in response to
federal government concerns about radical trade unionism, the rise of communism and
the potential for revolutionary activity.1 Schedule 7 of the Anti-Terrorism Act (No 2)
2005 (Cth) amended s 30A of the Crimes Act to insert a definition of ‗seditious‘
intention‘ into the sections, following the repeal of the sedition provisions in s 24A.
11.3 As the changes to Part IIA were consequential rather than substantive, they have
not attracted the same attention or criticism as the sedition provisions. Despite being
invoked rarely, these provisions have not been without controversy—and the
Committee of Review of Commonwealth Criminal Law (Gibbs Committee) in 1991
recommended their repeal.
11.4 This chapter considers the unlawful associations provisions as they currently
stand and the new definition of ‗seditious intention‘ inserted into s 30A. It then
compares their operation with the terrorist organisation offences added to the Criminal
Code (Cth) in 2002 and concludes that the unlawful associations provisions have been
superseded and should be repealed. The chapter then considers the three stand alone
offences within Part IIA that are not directly linked to unlawful associations, and
1
See R Douglas, ‗Keeping the Revolution at Bay: The Unlawful Associations Provisions of the
Commonwealth Crimes Act‘ (2001) 22 Adelaide Law Review 259. See also Ch 2.
228
Review of Sedition Laws
proposes that they be subject to repeal or review, in line with previous proposals in this
Discussion Paper.
Unlawful associations provisions
11.5 Section 30A of the Crimes Act declares as ‗unlawful associations‘:
(1) (a) any body of persons, incorporated or unincorporated, which by its constitution
or propaganda or otherwise advocates or encourages:
(i) the overthrow of the Constitution of the Commonwealth by revolution or
sabotage;
(ii) the overthrow by force or violence of the established government of the
Commonwealth or of a State or of any other civilized country or of organized
government; or
(iii) the destruction or injury of property of the Commonwealth or of property used
in trade or commerce with other countries or among the States;
or which is, or purports to be, affiliated with any organization which advocates or
encourages any of the doctrines or practices specified in this paragraph;
(b) any body of persons, incorporated or unincorporated, which by its constitution
or propaganda or otherwise advocates or encourages the doing of any act having or
purporting to have as an object the carrying out of a seditious intention.
(2) Any branch or committee of an unlawful association, and any institution or school
conducted by or under the authority or apparent authority of an unlawful association,
shall, for all the purposes of this Act, be deemed to be an unlawful association.
11.6 Under s 30A(1A) a body is an unlawful association if it is declared to be so by
the Federal Court of Australia, following a ‗show cause‘ application by the AttorneyGeneral pursuant to s 30AA.2 An earlier version of this provision was introduced in
1932, to address the uncertainty that might arise if a body that had, by virtue of its
attributes, become an unlawful association subsequently changed its policies and
activities in relevant ways, and should no longer be deemed to be an unlawful
association.3
11.7 Following the relocation of the sedition provisions from the Crimes Act to the
Criminal Code, a new definition of ‗seditious intention‘ was inserted as s 30A(3) of the
Crimes Act. This definition is the ‗modernised‘ version of s 24A the Crimes Act that
was recommended by the Gibbs Committee.4
2
3
4
Crimes Act 1914 (Cth) s 30AA.
R Douglas, ‗Keeping the Revolution at Bay: The Unlawful Associations Provisions of the
Commonwealth Crimes Act‘ (2001) 22 Adelaide Law Review 259, 263.
See discussion in Ch 4.
11. Unlawful Associations
229
11.8 Section 30A(3) of the Crimes Act provides that:
seditious intention means an intention to use force or violence to effect any of the
following purposes:
(a)
to bring the Sovereign into hatred or contempt;
(b)
to urge disaffection against the following:
(i)
the Constitution;
(ii)
the Government of the Commonwealth;
(iii) either House of the Parliament;
(c) to urge another person to attempt to procure a change, otherwise than by
lawful means, to any matter established by law of the Commonwealth;
(d) to promote feelings of ill-will or hostility between different groups so as
to threaten the peace, order and good government of the Commonwealth.
11.9 If a body is an unlawful association, whether by virtue of s 30A(1), (1A) or (2),
a number of criminal offences may apply, as specified in ss 30AB–30FC. These
offences include:
•
failure to provide information relating to an unlawful association upon the
request of the Attorney-General;5
•
being an officer, member or representative of an unlawful association;6
•
giving contributions of money or goods to, or soliciting donations for, an
unlawful association;7
•
printing, publishing or selling material issued by an unlawful association;8 or
•
allowing meetings of an unlawful association to be held on property owned or
controlled by a person.9
11.10 Each offence involves a maximum penalty of imprisonment for six or twelve
months.
5
6
7
8
9
Crimes Act 1914 (Cth) s 30AB, with a maximum penalty of imprisonment for six months.
Ibid s 30B, imprisonment for up to one year; and see s 30H regarding proof of membership.
Ibid s 30D, imprisonment for up to six months.
Ibid ss 30E, 30F, 30FA.
Ibid s 30FC, imprisonment for up to six months.
230
Review of Sedition Laws
History of the unlawful associations provisions
11.11 The unlawful associations provisions arose in the context of government
concern about radical trade unionism and revolutionary politics. Following the
Australia-wide strike by the seamen‘s union in 1925, the Bruce-Page Government
sought to introduce a number of legislative measures designed to attack trade unions
and their leaders in Australia.10 The Australian Government Attorney-General‘s
Department (AGD) note that Part IIA was developed in the context of concern about
communism in Australia.11
11.12 The unlawful associations legislation was based on a similar Canadian model,
although the penalties in Australia were considerably lighter. This Canadian legislation
was repealed in 1936.12 Some amendments were made to Part IIA in 2001, in part to
bring some of the language into line with the concepts and terminology used in the
Criminal Code.13
11.13 Only one person has ever been convicted in Australia of an offence under the
unlawful associations provisions—and that conviction was overturned on appeal.14
Dr Roger Douglas notes that it was largely the threat of prosecution that was used to
discourage people from making premises and public halls available to communists for
public meetings.
Between 1932–37, Part IIA was used to discourage the renting of meeting halls to
communists, and, more importantly, as the basis of banning the postal transmission of
communist publications. Between 1935–37, the Commonwealth made a half-hearted
attempt to seek a declaration banning the Friends of the Soviet Union (and, almost
incidentally, the Communist Party of Australia). But, with the settlement of that
litigation, governments largely lost interest in the Act, and never again were any
attempts made to enforce the unlawful associations provisions of Part IIA.15
11.14 Douglas notes that even when the Communist Party Dissolution Act 1950 (Cth)
was defeated in the High Court, no attempt was made to use the unlawful associations
provisions to prosecute communists.16
Criticisms of the unlawful associations provisions
11.15 In 1991, the Gibbs Committee recommended the repeal of Part IIA of the
Crimes Act in its entirety since the unlawful associations provisions had been ‗little
10
11
12
13
14
15
16
R Douglas, ‗Keeping the Revolution at Bay: The Unlawful Associations Provisions of the
Commonwealth Crimes Act‘ (2001) 22 Adelaide Law Review 259, 260.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
R Douglas, ‗Keeping the Revolution at Bay: The Unlawful Associations Provisions of the
Commonwealth Crimes Act‘ (2001) 22 Adelaide Law Review 259, 260.
Australian Government Attorney-General‘s Department, A Guide to Framing Commonwealth Offences:
Civil Penalties and Enforcement Powers (2004) sch 10.
R Douglas, ‗Keeping the Revolution at Bay: The Unlawful Associations Provisions of the
Commonwealth Crimes Act‘ (2001) 22 Adelaide Law Review 259, 261.
Ibid, 261.
Ibid, 261.
11. Unlawful Associations
231
used since their introduction in 1926‘. In its Discussion Paper, the Gibbs Committee
stated that it was:
disposed to think that the activities at which these provisions are aimed can best be
dealt with by existing laws creating such offences as murder, assault, abduction,
damage to property and conspiracy and that there is no need for these provisions.17
11.16 In the final report, the Committee noted that all the submissions received in
response to the proposal to repeal Part IIA endorsed that view.18 A separate
recommendation was made in relation to ss 30J and 30K of the Crimes Act, which is
discussed below.
11.17 A comprehensive survey of the history and use of the Part IIA provisions on
unlawful associations by Douglas concludes that the case for retention is weak.19
Although drafted to be of general application, Part IIA was designed to deal with the
threat posed by bodies such as the Communist Party—‗centrally co-ordinated bodies
with authoritative programs, proud of their revolutionary credentials‘.20 However, these
laws were not even effective against the Communist Party of Australia once it had
‗abandoned hopes of imminent revolution‘.21
It is therefore hard to see how Part IIA could be used against a movement less
formally committed to modernist norms such as consistency, coherence, rationality or
against a movement lacking the highly bureaucratised structure of the Communist
Party.22
11.18 Douglas suggests that prosecutions may not have been attempted under the
sections because of both the likely political backlash and the difficulty of proving an
offence. For example, he argues that the wording ‗by revolution or sabotage‘ is unclear
(without any need to link to violent revolution). In the case of the Communist Party,
the difficulty could arise as to whether a body was advocating revolution when its
doctrine was that revolution could not happen until a state of affairs existed that had
not yet arisen.23 There is also the need for the organisation to have indicated its
unlawful purposes via its constitution or propaganda. Douglas suggests that without a
clear constitution, the prosecution may have difficulty proving that propaganda was
produced by the particular body sought to be banned.24
17
18
19
20
21
22
23
24
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Fifth Interim Report
(1991), [38.2]–[38.9].
Ibid, [38.8]
R Douglas, ‗Keeping the Revolution at Bay: The Unlawful Associations Provisions of the
Commonwealth Crimes Act‘ (2001) 22 Adelaide Law Review 259.
Ibid, 261 and 295.
Ibid, 261 and 295.
Ibid, 261 and 295.
Ibid, 265. This issue was discussed in the only case on Part IIA: R v Hush; Ex parte Devanny (1932) 48
CLR 487, 517–518.
Ibid, 290.
232
Review of Sedition Laws
11.19 There is a distinction between the unlawful associations provisions and the
sedition offences (both the former ones under the Crimes Act and those under s 80.2 of
the Criminal Code). Sedition offences traditionally have required that the maker poses
a seditious intention and that the acts not be done in good faith. There is no defence of
good faith available to a body or persons prosecuted under Part IIA.25
11.20 Similar concerns were expressed about the unlawful associations provisions
during the course of the 2005 Senate Committee inquiry into the Anti-Terrorism Bill
(No 2) 2005. It was said, for example, that:
The ability to ban ‗unlawful associations‘ is linked to an archaic definition of
‗seditious intention‘ that covers practically all forms of moderate civil disobedience
26
and objection (including boycotts and peaceful marches).
11.21 It also was pointed out that retaining the concept of ‗seditious intention‘ for the
purposes of declaring associations unlawful under the Crimes Act ‗results in two
inconsistent meanings of sedition in federal law (one in the Crimes Act, and another in
the Criminal Code)‘.27
11.22 Chris Connolly raised a number of objections to Part IIA, including that it:
•
does not require any link whatsoever to force, violence or assisting the
enemy;
•
is not subject to any ‗good faith defence‘ or humanitarian defence;
•
appears to have no link at all to terrorism; and
•
is linked to an archaic definition of ‗seditious intention‘ that covers
practically all forms of moderate civil disobedience and objection (including
boycotts and peaceful marches).28
11.23 During the Senate Committee‘s inquiry, the AGD indicated that the amendment
to s 30A was merely a consequential one, was not intended to reinvigorate the use of
the provision and that ‗the Government has not fully considered the need for the
retention of section 30A of the Crimes Act‘.29
25
26
27
28
29
Ibid, 263.
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [5.160]; citing C Connolly, Submission 56 to Senate Inquiry into Anti-Terrorism
Bill (No 2) 2005, 7 November 2005.
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [5.159]; citing Gilbert & Tobin Centre of Public Law, Submission 80 to Senate
Inquiry into Anti-Terrorism Bill (No 2) 2005, 10 November 2005.
C Connolly, Submission 56 to Senate Inquiry into Anti-Terrorism Bill (No 2) 2005, 7 November 2005.
Senate Legal and Constitutional Committee—Parliament of Australia, Provisions of the Anti-Terrorism
Bill (No 2) 2005 (2005), [5.164]–[5.166].
11. Unlawful Associations
233
Submissions and consultations
11.24 Issues Paper 30 (IP 30) noted that the unlawful associations provisions still rely
on the concept of ‗seditious intention‘ and asked whether this was appropriate, given
that this concept is no longer used in connection with the offences in s 80.2 of the
Criminal Code.30
11.25 The use of the concept of ‗seditious intention‘ was criticised by almost every
submission that referred to the issue.31
11.26 The New South Wales Council for Civil Liberties argues that the re-enactment
of the old definition of seditious intention is out of step with the new offence created
under s 80.2.32
11.27 Victoria Legal Aid (VLA) criticises the retention of the unlawful associations
provisions as contrary to the principle of freedom of association under art 22 of the
International Covenant on Civil and Political Rights 1966. VLA agrees with the 2005
Senate Committee inquiry and the Gibbs Committee that Part IIA of the Crimes Act
should be repealed.33
11.28 ARTICLE 19 also submits that proscribing an organisation on the basis of
‗seditious intention‘ is antithetical to modern criminal law provisions and inconsistent
with standards under international law for the protection of the right to freedom of
expression and the right of freedom of association.34
11.29 Other criticisms of the unlawful associations provisions include that the
language of the sections is archaic,35 and the meaning of terms such as ‗civilised
country‘36 are unclear and the fact that the inserted definition of ‗seditious intention‘
does not include any requirement that there be any actual violence, disorder or breach
of the peace.37
30
31
32
33
34
35
36
37
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), Question 18.
See, eg, B Saul, Submission SED 52, 14 April 2006; National Association for the Visual Arts, Submission
SED 30, 11 April 2006; Australian Screen Directors Association Limited, Submission SED 51, 10 April
2006.
New South Wales Council for Civil Liberties Inc, Submission SED 39, 10 April 2006.
Victoria Legal Aid, Submission SED 43, 13 April 2006. This view was shared by others: National
Association for the Visual Arts, Submission SED 30, 11 April 2006; B Saul, Submission SED 52, 14 April
2006.
ARTICLE 19, Submission SED 14, 10 April 2006.
J Pyke, Submission SED 18, 10 April 2006.
Ibid.
John Fairfax Holdings Ltd, News Limited and Australian Associated Press, Submission SED 56, 18 April
2006.
234
Review of Sedition Laws
11.30 Consistent with its position during the 2005 Senate Committee inquiry, the
AGD‘s submission to this Inquiry indicates that the definition of ‗seditious intention‘
was inserted by the Anti-Terrorism Act simply as a consequential amendment to
preserve the status quo, not with the purpose of reinvigorating the unlawful
associations provisions.38
Terrorist organisations under the Criminal Code
11.31 The Terms of Reference ask the ALRC to consider whether Part IIA, as
amended, is effective to address the problem of organisations that advocate or
encourage the use of force or violence to achieve political objectives. It has been
suggested to this Inquiry that the acts covered by the unlawful associations provisions
are now more appropriately dealt by the offences banning terrorist organisations under
the Criminal Code.
11.32 In IP 30, the ALRC noted that the enactment in 2002 of a new set of counterterrorism measures, including provisions dealing with acts of terrorism and terrorist
organisations, suggests that the Parliament saw the Part IIA provisions as inadequate to
the task of dealing with the challenges of modern terrorism.39
Terrorist acts
11.33 Division 100.1 of the Criminal Code defines a ‗terrorist act‘ as an action or
threat made with the intention both of ‗advancing a political, religious or ideological
cause‘ and ‗coercing, or influencing by intimidation‘ a governmental authority in
Australia or overseas. The section then spells out what falls within the definition of a
terrorist act, this being action that:
•
causes serious physical harm to a person, causes death or endangers human life;
•
causes serious damage to property;
•
creates a serious risk to the health and safety of the public or a section of the
public;
•
seriously interferes with, seriously disrupts, or destroys, an electronic system;
and
•
is not advocacy, protest, dissent or industrial action, and is not intended to have
the above consequences.40
11.34 Division 101 creates a number of serious associated offences, including:
38
39
40
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
Security Legislation Amendment (Terrorism) Act 2002 (Cth) sch 1.
Criminal Code (Cth) s 100.1(2), (3).
11. Unlawful Associations
•
engaging in a terrorist act;41
•
providing or receiving training connected with terrorist acts;42
•
possessing things connected with terrorist acts;43
•
collecting or making documents likely to facilitate terrorist acts;44 or
•
doing other acts in preparation for, or planning, terrorist acts.45
235
Terrorist organisations
11.35 Division 102 of the Criminal Code contains a regime for the Attorney-General
to proscribe organisations that have a specified terrorist connection or that have
endangered, or are likely to endanger, the security or integrity of the Commonwealth,
and to make membership or other specified links with such organisations an offence.
11.36 There are two ways in which a group can be identified formally as a ‗terrorist
organisation‘ under Division 102. First, a group may be declared a terrorist
organisation by a court, in connection with a conviction for a terrorist offence. Second,
a group may be ‗listed‘ as a terrorist organisation in a regulation promulgated by the
Governor-General. Before an organisation can be listed, the responsible Minister
(currently the Attorney-General) must be satisfied on reasonable grounds that the
organisation is directly or indirectly engaged in, preparing, planning, assisting in or
fostering the doing of a terrorist act (whether or not the terrorist act has occurred or
will occur).46
11.37 The Anti-Terrorism Bill (No 2) 2005 added an additional criteria by which the
Attorney-General can find that an organisation is a terrorist organisation: where the
organisation advocates the doing of a terrorist act (whether or not a terrorist act has
occurred or will occur). ‗Advocating a terrorist act‘ is defined as directly or indirectly
counselling or urging the doing of a terrorist act; directly or indirectly providing
instruction on the doing of a terrorist act; or directly praising the doing of a terrorist act
in circumstances where there is a risk that such praise might have the effect of leading
a person to engage in a terrorist act.47
41
42
43
44
45
46
47
Ibid s 101.1, punishable by a maximum of life imprisonment.
Ibid s 101.2, punishable by imprisonment for up to 15 or 25 years, depending upon the circumstances.
Ibid s 101.4, punishable by imprisonment for up to 10 or 15 years, depending upon the circumstances.
Ibid s 101.5, punishable by imprisonment for up to 10 or 15 years, depending upon the circumstances.
Ibid s 101.6, punishable by a maximum of life imprisonment.
Ibid s 102.1(2).
Ibid s 102.1(1A).
236
Review of Sedition Laws
11.38 Regulations listing an organisation cease to have effect two years after their
commencement—or earlier if the regulation is repealed or if the Minister is no longer
satisfied that the organisation is directly or indirectly engaged in terrorism.48 An
organisation may be re-listed after the initial two-year period by making a new
regulation.49 Since 2004, regulations also are subject to review by the Parliamentary
Joint Committee on Intelligence and Security—which may recommend disallowance.50
There are currently 19 organisations officially listed as terrorist organisations.51
11.39 After an organisation is designated a ‗terrorist organisation‘, it becomes an
offence:
•
to direct the activities of the organisation;52
•
intentionally to be a member of that organisation;53
•
to recruit persons to the organisation;54
•
to receive training from, or provide training to, the organisation;55
•
to receive funds from, or provide funds to, the organisation;56
•
to provide support or resources to the organisation;57 or
•
on two or more occasions, intentionally to associate with a terrorist organisation,
or its members or leadership, with the intention that the association will assist
the terrorist to expand or to continue to exist.58
11.40 The Security Legislation Review Committee, chaired by the Hon Simon
Sheller AO, has conducted a review of the operation and effectiveness of the counterterrorism laws, including Divisions 101 and 102. The review is a statutory requirement
of the Security Legislation Amendment (Terrorism) Act 2002 (Cth). At the time of
writing the findings of the review had not been released to the public.
48
49
50
51
52
53
54
55
56
57
58
Ibid s 102.1(3)–(4).
Ibid s 102.1(3)(c).
Ibid s 102.1A.
The full list may be found at Australian Government Attorney-General‘s Department, Listing of Terrorist
Organisations <www.nationalsecurity.gov.au> at 12 March 2006.
Criminal Code (Cth) s 102.2, punishable by imprisonment for up to 10 or 15 years, depending upon the
circumstances.
Ibid s 102.3, punishable by imprisonment for up to 10 years.
Ibid s 102.4, punishable by imprisonment for up to 15 or 25 years, depending upon the circumstances.
Ibid s 102.5, punishable by imprisonment for up to 25 years.
Ibid s 102.6, punishable by imprisonment for up to 15 or 25 years, depending upon the circumstances.
Ibid s 102.7, punishable by imprisonment for up to 15 or 25 years, depending upon the circumstances.
Ibid s 102.8, punishable by imprisonment for up to three years.
11. Unlawful Associations
237
Comparing the unlawful associations and terrorist organisation
provisions
Conceptual basis
11.41 Terrorist organisations and unlawful associations are based on different
underlying concepts.59 Under s 103(1), a terrorist organisation is an ‗organisation that
is directly or indirectly engaged in, preparing, planning, assisting in or fostering the
doing of a terrorist act (whether or not the terrorist act has occurred or will occur)‘ or
an organisation that has been listed, as described above.
11.42 The definition of a terrorist act under s 100.1(1) is an action or threat made with
the intention both of ‗advancing a political, religious or ideological cause‘ and
‗coercing, or influencing by intimidation‘ a governmental authority in Australia or
overseas.
11.43 As noted above, an unlawful association is a body of persons who advocates or
encourages overthrow of the Government, or advocates or encourages the doing of any
act having or purporting to have as an object, the carrying out of a seditious intention.
Unlike a terrorist organisation, an unlawful association does not need to act in
advancement of a particular cause or with the intention to coerce or influence by
intimidation a government, country or section of the community. The AGD suggests
that a circumstance may arise where it is possible to show that a group advocated or
encouraged one of the acts listed in s 30A of the Crimes Act but it is not possible to
establish the intention needed to establish a terrorist act.60
Listing
11.44 As noted above, s 30A(1A) requires a body must be declared an unlawful
association by the Federal Court following a ‗show cause‘ application by the AttorneyGeneral under s 30AA.
11.45 Prior to the amendments to Division 102, made by the Criminal Code
Amendment (Terrorist Organisations) Act 2004 (Cth), an organisation could be listed
as a terrorist organisation only if it already had been formally declared as such by the
United Nations Security Council—or else a dedicated piece of legislation would have
to be passed by the Australian Parliament in each case.
11.46 The Australian Government argued that this mechanism was too restrictive and
cumbersome to meet Australia‘s particular security needs. For example, the Security
59
60
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
Ibid. The AGD made a submission to the Sheller Committee, in which it called for the removal of the
requirement to prove an intention to advance a political, religious or ideological cause on the basis that it
makes the definition of a terrorist act overly complicated, and placed a heavy burden on the prosecution:
Attorney-General‘s Department, Submission to the Security Legislation Review (2006), 12.
238
Review of Sedition Laws
Council might be slow to act in the case of an organisation that mainly posed a
regional, rather than an international, threat; or the Security Council might be
influenced by political considerations that are not shared by Australia. As noted above,
listing now proceeds through the making of a regulation, and no longer relies on
Security Council resolutions.
11.47 Prior to these changes, it could have been argued that there was a need to retain
the unlawful associations provisions in the Crimes Act, since the high bar of
identification as a ‗terrorist organisation‘ by the Security Council made listing difficult,
and therefore left gaps in the law which terrorists could exploit. However, the new
listing procedures are not subject to the same constraints.
Submissions and consultations
11.48 IP 30 asked to what extent the unlawful associations provisions overlap with the
more recent terrorist organisations provisions of Division 102 of the Criminal Code,
and whether the unlawful associations provisions were still necessary.61
11.49 The Australian Federal Police indicate that, in practice, the unlawful
associations provisions were not considered for use, and expressed satisfaction with the
framing of the terrorist organisation offences.62 The Commonwealth Director of Public
Prosecutions agree that the definition of a terrorist organisation was likely to be
sufficiently broad to effectively cover the activities of any group that previously would
have been considered for designation as an unlawful association.63
11.50 VLA agree that there is no longer any need to retain these provisions, ‗given that
Division 102 now provides a simple procedure for protecting the safety of
Australians—by proscribing terrorist organisations and criminalising specific conduct
in relation to those organisations‘.64
11.51 The New South Wales Council for Civil Liberties submit that Part IIA the
Crimes Act now seems redundant given the powers enacted under the anti-terrorism
legislation in the Criminal Code in recent years with regard to the prescribing of
terrorist organisations.65 This view was shared by a number of other lawyers and
commentators with whom the Inquiry consulted.66
11.52 ARTICLE 19 note that:
61
62
63
64
65
66
Australian Law Reform Commission, Review of Sedition Laws, IP 30 (2006), Question 19.
Australian Federal Police, Consultation, Canberra, 26 April 2006.
Commonwealth Director of Public Prosecutions, Consultation, Canberra, 26 April 2006.
Victoria Legal Aid, Submission SED 43, 13 April 2006.
New South Wales Council for Civil Liberties Inc, Submission SED 39, 10 April 2006.
R Connolly and C Connolly, Consultation, Melbourne, 5 April 2006; Human Rights Lawyers,
Consultation, Sydney, 29 March 2006; D Neal, Consultation, Melbourne, 4 April 2006; M Weinberg,
Consultation, Melbourne, 3 April 2006; B Saul, Submission SED 52, 14 April 2006.
11. Unlawful Associations
239
While we have a number of concerns with the provisions relating to the proscription
of ‗terrorist‘ organisations introduced in 2002, we consider that these provisions to be
at least more causally linked to proscribing on the basis that an association may pose a
threat to national security.
Furthermore, the scope of the unlawful association provisions have been
progressively eroded by context-specific legislation which supersedes the latter‘s
application, including the Workplace Relations Act 1996 (Cth) and the counterterrorism amendments to the Criminal Code in 2002.67
11.53 The AGD notes that ‗circumstances have changed dramatically since the
enactment of Part IIA. The terrorism provisions address contemporary threats to the
Australian community‘.68
ALRC’s views
11.54 The ALRC agrees that the unlawful associations provisions are outdated and
unnecessary. There has been little disagreement with the view that the provisions
should be repealed.
11.55 In Chapter 2, the ALRC proposes that, due to its historical connotations, the
term ‗sedition‘ should be removed from the federal statute book. The ALRC agrees
with the submissions to this Inquiry that argue that preserving an old definition of
seditious intention in Part IIA of the Crimes Act creates two different and inconsistent
meanings of ‗sedition‘ in federal law.
11.56 Repeal of the unlawful associations provisions will not leave a gap in federal
criminal law. Both the definition of a ‗terrorist act‘ and a ‗terrorist organisation‘ under
the Criminal Code are sufficiently broad in scope to cover the types of organisations
that advocate or urge politically motivated violence. This is particularly the case now
that an organisation may be proscribed for advocating or praising the doing of a
terrorist act. The link to the urging of serious violence or serious risk is a more modern
and appropriate framing of the offences than banning organisations with a ‗seditious
intention‘.
11.57 It is difficult to imagine a practical circumstance in which a group advocating
the overthrow of the Constitution or the established government does not have an
accompanying intention to advance a particular cause or coerce or influence a
governmental authority. Further, if such a case should arise, the ALRC agrees with the
Gibbs Committee that existing criminal laws covering murder, assault, abduction,
67
68
ARTICLE 19, Submission SED 14, 10 April 2006.
Australian Government Attorney-General‘s Department, Submission SED 31, 12 April 2006.
240
Review of Sedition Laws
damage to property or conspiracy—or incitement to any of the above activities—would
be sufficient to deal appropriately with offenders.69
11.58 The ALRC therefore proposes that ss 30A, 30AA, 30AB, 30B, 30D, 30E, 30F,
30FA, 30FC, 30FD, 30G, 30H and 30R of Part IIA the Crimes Act be repealed.
Proposal 11–1
Sections 30A, 30AA, 30AB, 30B, 30D, 30E, 30F, 30FA,
30FC, 30FD, 30G, 30H and 30R of Part IIA of the Crimes Act 1914 (Cth),
concerning unlawful associations, should be repealed.
Other offences under Part IIA
11.59 Part IIA also contains three other offences that do not directly rely on the
concept of an unlawful association.
Section 30C
11.60 Section 30C is another sedition-type provision, making it an offence punishable
by imprisonment for up to two years for any person, ‗who by speech or writing
advocates or encourages‘:
(a) the overthrow of the Constitution of the Commonwealth by revolution or sabotage;
(b) the overthrow by force or violence of an established government of the
Commonwealth or of a State or of any other civilized country or of organized
government; or
(c) the destruction or injury of property of the Commonwealth or of property used in
trade or commerce with other countries or among the States.
11.61 This provision is effectively another version of the sedition offence found in
s 80.2(1) of the Criminal Code—albeit with a lesser penalty. In Chapter 8, the ALRC
suggests that s 30C is redundant and proposes that it be repealed.70
Sections 30J and 30K
11.62 Sections 30J and 30K are more closely related to emergency or industrial
powers than to the banning of unlawful associations. Reflecting the origins of Part IIA
in the seamen‘s union strike, s 30J provides that in the event of a ‗serious industrial
disturbance prejudicing or threatening trade and commerce with other countries or
among the States‘, the Governor-General may issue a proclamation prohibiting persons
from taking part in, inciting, urging, aiding or continuing, a strike or lock-out in
relation to:
69
70
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Offences Relating to the
Security and Defence of the Commonwealth, Discussion Paper No 8 (1988), [10.2].
Proposal 8–4.
11. Unlawful Associations
241
•
employment in or connection with, the transport of goods or the conveyance of
passengers in trade or commerce with other countries or among the states;71
•
employment in or in connection with, the provision of any public service by the
Commonwealth or by any Department or public authority under the
Commonwealth.72
11.63 It appears that such a proclamation only has been made once, in 1951.73
11.64 Section 30K deals with threats or boycotts affecting public services. A person
who by violence, threats, intimidation or boycotts obstructs or hinders the performance
of public services or hinders trade or commerce between the States or other countries is
guilty of an offence. The penalty for an offence under s 30K is imprisonment for one
year.
11.65 The justification for ss 30J and 30K at the time of enactment was ‗that the
sanctions are needed to prevent the dislocation of interstate and overseas trade and
commerce and the working of Commonwealth services and authorities‘.74 Lee notes
that, unlike the state governments, the Commonwealth, largely for constitutional
reasons, does not have comprehensive ‗emergency powers‘ type legislation.75
11.66 The Gibbs Committee noted that the question of the appropriate wording and
operation of ss 30J and 30K should be considered in the context of industrial relations
legislation, rather than a review of the Crimes Act. The Committee also noted that ‗it
may be convenient to remove sub-sections 30J and 30K from the Crimes Act and to
include any amended substitution for them in legislation dealing with industrial
relations‘.76
11.67 In a modern context, serious industrial disputes of this nature almost certainly
would be handled under the Workplace Relations Act 1996 (Cth), rather than the
Crimes Act. The Australian Government‘s recent amendments to the Workplace
Relations Act, as part of the WorkChoices reforms,77 has seen the inclusion of
provisions under which industrial action may be terminated in certain circumstances.
For example, under s 498 of the Act, the Minister may make a declaration terminating
access to protected industrial action during a bargaining period if, for example, the
71
72
73
74
75
76
77
Crimes Act 1914 (Cth) s 30J(2)(a).
Ibid s 30J(2)(b).
Government Gazettes 1951, 623 and 802.
E Sykes and H Glasbeek Labour Law in Australia (1972), 541, cited in H Lee, Emergency Powers
(1984), 166.
Ibid, 166.
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Offences Relating to the
Security and Defence of the Commonwealth, Discussion Paper No 8 (1988), 29.
Workplace Relations Amendment (Work Choices) Act 2005 (Cth).
242
Review of Sedition Laws
industrial action threatens the life, personal safety or health, or the welfare of the
population or is causing serious damage to the Australian economy. If person
contravenes such an order, a civil penalty may be imposed.78
11.68 However, there is no direct equivalent of these emergency powers within the
industrial relations legislation, nor any criminal penalties for incitement of an illegal
strike or lockout. The question of the necessity of criminal sanctions in this context and
the appropriate prohibitions on serious industrial action falls outside the terms of
reference for this Inquiry.
11.69 The ALRC has proposed elsewhere in this Discussion Paper that the Australian
Government should initiate a review of a range of offences contained in the Crimes Act
to determine which warrant retention, relocation to the Criminal Code, or repeal.
Sections 30J and 30K should be included in this process.
Proposal 11–2
The Australian Government should include ss 30J and 30K
of the Crimes Act 1914 (Cth) in the larger review of the Crimes Act called for in
Proposal 4–1.
78
The penalty cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other
case: Workplace Relations Act 1996 (Cth) s 499(7).
Appendix 1. Existing Criminal Code Provisions
Chapter 5—The security of the Commonwealth
Part 5.1—Treason and sedition
Division 80—Treason and sedition
80.1A Definition of organisation
In this Division:
organisation means:
(a)
a body corporate; or
(b)
an unincorporated body;
whether or not the body is based outside Australia, consists of persons who are
not Australian citizens, or is part of a larger organisation.
80.1 Treason
(1)
A person commits an offence, called treason, if the person:
(a)
causes the death of the Sovereign, the heir apparent of the Sovereign, the
consort of the Sovereign, the Governor-General or the Prime Minister; or
(b)
causes harm to the Sovereign, the Governor-General or the Prime
Minister resulting in the death of the Sovereign, the Governor-General or
the Prime Minister; or
(c)
causes harm to the Sovereign, the Governor-General or the Prime
Minister, or imprisons or restrains the Sovereign, the Governor-General
or the Prime Minister; or
(d)
levies war, or does any act preparatory to levying war, against the
Commonwealth; or
(e)
engages in conduct that assists by any means whatever, with intent to
assist, an enemy:
244
Review of Sedition Laws
(f)
(i)
at war with the Commonwealth, whether or not the existence of a
state of war has been declared; and
(ii)
specified by Proclamation made for the purpose of this paragraph
to be an enemy at war with the Commonwealth; or
engages in conduct that assists by any means whatever, with intent to
assist:
(i)
another country; or
(ii)
an organisation;
that is engaged in armed hostilities against the Australian Defence Force;
or
(g)
instigates a person who is not an Australian citizen to make an armed
invasion of the Commonwealth or a Territory of the Commonwealth; or
(h)
forms an intention to do any act referred to in a preceding paragraph and
manifests that intention by an overt act.
Penalty: Imprisonment for life.
(1A) Paragraphs (1)(e) and (f) do not apply to engagement in conduct by way of, or
for the purposes of, the provision of aid of a humanitarian nature.
Note 1:
A defendant bears an evidential burden in relation to the matter in
subsection (1A). See subsection 13.3(3).
Note 2:
There is a defence in section 80.3 for acts done in good faith.
(1B) Paragraph (1)(h) does not apply to formation of an intention to engage in
conduct that:
(a)
is referred to in paragraph (1)(e) or (f); and
(b)
is by way of, or for the purposes of, the provision of aid of a humanitarian
nature.
Note:
(2)
A defendant bears an evidential burden in relation to the matter in
subsection (1B). See subsection 13.3(3).
A person commits an offence if the person:
(a)
receives or assists another person who, to his or her knowledge, has
committed treason with the intention of allowing him or her to escape
punishment or apprehension; or
Appendix 1. Existing Criminal Code Provisions
(b)
245
knowing that another person intends to commit treason, does not inform a
constable of it within a reasonable time or use other reasonable
endeavours to prevent the commission of the offence.
Penalty: Imprisonment for life.
(5)
On the trial of a person charged with treason on the ground that he or she
formed an intention to do an act referred to in paragraph (1)(a), (b), (c), (d), (e),
(f) or (g) and manifested that intention by an overt act, evidence of the overt act
is not to be admitted unless the overt act is alleged in the indictment.
(8)
In this section:
constable means a member or special member of the Australian Federal Police
or a member of the police force or police service of a State or Territory.
80.2 Sedition
Urging the overthrow of the Constitution or Government
(1)
A person commits an offence if the person urges another person to overthrow by
force or violence:
(a)
the Constitution; or
(b)
the Government of the Commonwealth, a State or a Territory; or
(c)
the lawful authority of the Government of the Commonwealth.
Penalty: Imprisonment for 7 years.
(2)
Recklessness applies to the element of the offence under subsection (1) that it is:
(a)
the Constitution; or
(b)
the Government of the Commonwealth, a State or a Territory; or
(c)
the lawful authority of the Government of the Commonwealth;
that the first-mentioned person urges the other person to overthrow.
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Urging interference in Parliamentary elections
(3)
A person commits an offence if the person urges another person to interfere by
force or violence with lawful processes for an election of a member or members
of a House of the Parliament.
Penalty: Imprisonment for 7 years.
(4)
Recklessness applies to the element of the offence under subsection (3) that it is
lawful processes for an election of a member or members of a House of the
Parliament that the first-mentioned person urges the other person to interfere
with.
Urging violence within the community
(5)
A person commits an offence if:
(a)
the person urges a group or groups (whether distinguished by race,
religion, nationality or political opinion) to use force or violence against
another group or other groups (as so distinguished); and
(b)
the use of the force or violence would threaten the peace, order and good
government of the Commonwealth.
Penalty: Imprisonment for 7 years.
(6)
Recklessness applies to the element of the offence under subsection (5) that it is
a group or groups that are distinguished by race, religion, nationality or political
opinion that the first-mentioned person urges the other person to use force or
violence against.
Urging a person to assist the enemy
(7)
A person commits an offence if:
(a)
the person urges another person to engage in conduct; and
(b)
the first-mentioned person intends the conduct to assist an organisation or
country; and
(c)
the organisation or country is:
(i)
at war with the Commonwealth, whether or not the existence of a
state of war has been declared; and
Appendix 1. Existing Criminal Code Provisions
(ii)
247
specified by Proclamation made for the purpose of paragraph
80.1(1)(e) to be an enemy at war with the Commonwealth.
Penalty: Imprisonment for 7 years.
Urging a person to assist those engaged in armed hostilities
(8)
A person commits an offence if:
(a)
the person urges another person to engage in conduct; and
(b)
the first-mentioned person intends the conduct to assist an organisation or
country; and
(c)
the organisation or country is engaged in armed hostilities against the
Australian Defence Force.
Penalty: Imprisonment for 7 years.
Defence
(9)
Subsections (7) and (8) do not apply to engagement in conduct by way of, or for
the purposes of, the provision of aid of a humanitarian nature.
Note 1:
A defendant bears an evidential burden in relation to the matter in
subsection (9). See subsection 13.3(3).
Note 2:
There is a defence in section 80.3 for acts done in good faith.
80.3 Defence for acts done in good faith
(1)
Sections 80.1 and 80.2 do not apply to a person who:
(a)
tries in good faith to show that any of the following persons are mistaken
in any of his or her counsels, policies or actions:
(i)
the Sovereign;
(ii)
the Governor-General;
(iii)
the Governor of a State;
(iv)
the Administrator of a Territory;
(v)
an adviser of any of the above;
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(vi)
(b)
points out in good faith errors or defects in the following, with a view to
reforming those errors or defects:
(i)
the Government of the Commonwealth, a State or a Territory;
(ii)
the Constitution;
(iii)
legislation of the Commonwealth, a State, a Territory or another
country;
(iv)
the administration of justice of or in the Commonwealth, a State, a
Territory or another country; or
(c)
urges in good faith another person to attempt to lawfully procure a change
to any matter established by law, policy or practice in the
Commonwealth, a State, a Territory or another country; or
(d)
points out in good faith any matters that are producing, or have a
tendency to produce, feelings of ill-will or hostility between different
groups, in order to bring about the removal of those matters; or
(e)
does anything in good faith in connection with an industrial dispute or an
industrial matter; or
(f)
publishes in good faith a report or commentary about a matter of public
interest.
Note:
(2)
a person responsible for the government of another country; or
A defendant bears an evidential burden in relation to the matter in
subsection (1). See subsection 13.3(3).
In considering a defence under subsection (1), the Court may have regard to any
relevant matter, including whether the acts were done:
(a)
for a purpose intended to be prejudicial to the safety or defence of the
Commonwealth; or
(b)
with the intention of assisting an enemy:
(i)
at war with the Commonwealth; and
(ii)
specified by Proclamation made for the purpose of paragraph
80.1(1)(e) to be an enemy at war with the Commonwealth; or
Appendix 1. Existing Criminal Code Provisions
249
(c)
with the intention of assisting another country, or an organisation, that is
engaged in armed hostilities against the Australian Defence Force; or
(d)
with the intention of assisting a proclaimed enemy of a proclaimed
country (within the meaning of subsection 24AA(4) of the Crimes Act
1914); or
(e)
with the intention of assisting persons specified in paragraphs 24AA(2)(a)
and (b) of the Crimes Act 1914; or
(f)
with the intention of causing violence or creating public disorder or a
public disturbance.
80.4 Extended geographical jurisdiction for offences
Section 15.4 (extended geographical jurisdiction—category D) applies to an offence
against this Division.
80.5 Attorney-General’s consent required
(1)
Proceedings for an offence against this Division must not be commenced
without the Attorney-General‘s written consent.
(2)
Despite subsection (1):
(a)
a person may be arrested for an offence against this Division; or
(b)
a warrant for the arrest of a person for such an offence may be issued and
executed;
and the person may be charged, and may be remanded in custody or on bail, but:
(c)
no further proceedings may be taken until that consent has been obtained;
and
(d)
the person must be discharged if proceedings are not continued within a
reasonable time.
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80.6 Division not intended to exclude State or Territory law
It is the intention of the Parliament that this Division is not to apply to the exclusion of
a law of a State or a Territory to the extent that the law is capable of operating
concurrently with this Division.
Appendix 2. Proposed Division 80 of the
Criminal Code
[The ALRC‘s proposed amendments to Division 80 are highlighted.]
Chapter 5—The security of the Commonwealth
Part 5.1—Treason and offences against political liberty and
public order
Division 80—Treason and offences against political liberty and public
order
80.1A Definition of organisation
In this Division:
organisation means:
(a) a body corporate; or
(b) an unincorporated body;
whether or not the body is based outside Australia, consists of persons who are
not Australian citizens, or is part of a larger organisation.
80.1 Treason
(1)
A person commits an offence, called treason, if at the time of the offence, being
an Australian citizen or resident, the person:
(a)
causes the death of the Sovereign, the heir apparent of the Sovereign, the
consort of the Sovereign, the Governor-General or the Prime Minister; or
(b)
causes harm to the Sovereign, the Governor-General or the Prime
Minister resulting in the death of the Sovereign, the Governor-General or
the Prime Minister; or
(c)
causes harm to the Sovereign, the Governor-General or the Prime
Minister, or imprisons or restrains the Sovereign, the Governor-General
or the Prime Minister; or
(d)
levies war, or does any act preparatory to levying war, against the
Commonwealth; or
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Review of Sedition Laws
(e)
(f)
engages in conduct that materially assists, with intent to assist, an enemy
to engage in war with the Commonwealth:
(i)
whether or not the existence of a state of war has been declared;
and provided that
(ii)
a Proclamation made for the purpose of this paragraph specifies
that the entity assisted is an enemy at war with the
Commonwealth; or
engages in conduct that materially assists, with intent to assist, another
country or an organisation to engage in armed hostilities against the
Australian Defence Force; or
Note:
The word ‗materially‘ in paragraphs (e) and (f) is meant to make
clear that mere rhetoric or expressions of dissent are not sufficient;
the assistance must enable the enemy or entity to wage war or
engage in armed hostilities, such as through the provision of
funds, troops, arms, or strategic advice or information.
(g)
instigates a person who is not an Australian citizen to make an armed
invasion of the Commonwealth or a Territory of the Commonwealth; or
(h)
forms an intention to do any act referred to in a preceding paragraph and
manifests that intention by an overt act.
Penalty: Imprisonment for life.
(1A) Paragraphs (1)(e) and (f) do not apply to engagement in conduct by way of, or
for the purposes of, the provision of aid of a humanitarian nature.
Note:
A defendant bears an evidential burden in relation to the matter in
subsection (1A). See subsection 13.3(3).
(1B) Paragraph (1)(h) does not apply to formation of an intention to engage in
conduct that:
(a)
is referred to in paragraph (1)(e) or (f); and
(b)
is by way of, or for the purposes of, the provision of aid of a humanitarian
nature.
Note:
(2)
A defendant bears an evidential burden in relation to the matter in
subsection (1B). See subsection 13.3(3).
A person commits an offence if the person:
Appendix 2. Proposed Division 80 of the Criminal Code
253
(a)
receives or assists another person who, to his or her knowledge, has
committed treason with the intention of allowing him or her to escape
punishment or apprehension; or
(b)
knowing that another person intends to commit treason, does not inform a
constable of it within a reasonable time or use other reasonable
endeavours to prevent the commission of the offence.
Penalty: Imprisonment for life.
(5)
On the trial of a person charged with treason on the ground that he or she
formed an intention to do an act referred to in paragraph (1)(a), (b), (c), (d), (e),
(f) or (g) and manifested that intention by an overt act, evidence of the overt act
is not to be admitted unless the overt act is alleged in the indictment.
(8)
In this section:
constable means a member or special member of the Australian Federal Police
or a member of the police force or police service of a State or Territory.
80.2 Offences against political liberty and public order
Urging the overthrow by force or violence of the Constitution or Government
(1)
A person commits an offence if the person intentionally urges another person to
overthrow by force or violence:
(a)
the Constitution; or
(b)
the Government of the Commonwealth, a State or a Territory; or
(c)
the lawful authority of the Government of the Commonwealth.
Penalty: Imprisonment for 7 years.
(2)
Recklessness applies to the element of the offence under subsection (1) that it is:
(a)
the Constitution; or
(b)
the Government of the Commonwealth, a State or a Territory; or
(c)
the lawful authority of the Government of the Commonwealth;
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Review of Sedition Laws
that the first-mentioned person urges the other person to overthrow.
Note:
See section 80.2(7) regarding proof of intention that the urged
force or violence will occur.
Urging interference in Parliamentary elections by force or violence
(3)
A person commits an offence if the person intentionally urges another person to
interfere by force or violence with lawful processes for an election of a member
or members of a House of the Parliament or for a referendum on a proposed law
for the alteration of the Constitution.
Penalty: Imprisonment for 7 years.
(4)
Recklessness applies to the element of the offence under subsection (3) that it is
lawful processes for an election of a member or members of a House of the
Parliament or for a referendum on a proposed law for the alteration of the
Constitution, that the first-mentioned person urges the other person to interfere
with.
Note:
See section 80.2(7) regarding proof of intention that the urged
force or violence will occur.
Urging inter-group force or violence
(5)
A person commits an offence if:
(a)
the person intentionally urges a group or groups (whether distinguished
by race, religion, nationality, national origin or political opinion) to use
force or violence against another group or other groups (as so
distinguished); and
(b)
the use of the force or violence would threaten the peace, order and good
government of the Commonwealth.
Penalty: Imprisonment for 7 years.
(6)
Recklessness applies to the element of the offence under subsection (5) that it is
a group or groups that are distinguished by race, religion, nationality, national
origin or political opinion that the first-mentioned person urges the other person
to use force or violence against.
Note:
See section 80.2(7) regarding proof of intention that the urged
force or violence will occur.
Appendix 2. Proposed Division 80 of the Criminal Code
255
(7)
For a person to be guilty of an offence under subsections (1), (3) or (5) the
person must intend that the force or violence urged will occur.
(8)
In considering whether for the purposes of subsection (7) a person intends that
the urged force or violence will occur, the trier of fact must take into account
whether the conduct was done
(a)
in the performance, exhibition or distribution of an artistic work; or
(b)
in the course of any statement, publication, discussion or debate made or
held for any genuine academic, artistic or scientific purpose or any other
genuine purpose in the public interest; or
(c)
in connection with an industrial dispute or an industrial matter; or
(d)
in publishing a report or commentary about a matter of public interest;
and may have regard to any relevant matter.
(7)
Urging a person to assist the enemy—Repealed.
See s 80.1(1)(e) for the equivalent treason offence.
(8)
Urging a person to assist those engaged in armed hostilities—Repealed.
See s 80.1(1)(f) for the equivalent treason offence.
(9)
Defence—Repealed.
See s 80.1(1A) for the equivalent humanitarian aid exclusion to the offence of
treason.
80.3 Defence for acts done in good faith—Repealed
See s 80.2(7)–(8) regarding proof of intention that the urged force or violence will
occur, and the context to be considered.
80.4 Extended geographical jurisdiction for offences
Section 15.4 (extended geographical jurisdiction—category D) applies to an offence
against this Division.
80.5 Attorney-General’s consent required—Repealed
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80.6 Division not intended to exclude State or Territory law
It is the intention of the Parliament that this Division is not to apply to the exclusion of
a law of a State or a Territory to the extent that the law is capable of operating
concurrently with this Division.
Appendix 3. List of Submissions
Name
Submission
Number
Date
ARTICLE 19
SED 14
10 April 2006
Arts Law Centre of Australia
SED 46
13 April 2006
Australia Council for the Arts
SED 34
11 April 2006
Australian Broadcasting Corporation
SED 49
20 April 2006
Australian Government Attorney-General's
Department
SED 31
12 April 2006
Australian Lawyers for Human Rights
SED 47
13 April 2006
Australian Major Performing Arts Group
SED 61
16 April 2006
Australian Muslim Civil Rights Advocacy
Network
SED 54
17 April 2006
Australian Press Council
SED 48
13 April 2006
Australian Screen Directors Association
SED 51
10 April 2006
Australian Society of Authors
SED 24
18 April 2006
Australian Vice-Chancellors‘ Committee
SED 60
25 April 2006
Australian Writers‘ Guild
SED 29
11 April 2006
P Bradley
SED 09
22 April 2006
Cameron Creswell Agency Pty Ltd
SED 26
10 April 2006
Centre for Media and Communications Law
SED 32
12 April 2006
Civil Liberties Australia
SED 37
10 April 2006
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Review of Sedition Laws
Name
Submission
Number
Date
Combined Community Legal Centres Group
(NSW) Inc
SED 50
13 April 2006
Confidential
SED 12
4 April 2006
Confidential
SED 22
3 May 2006
P Emerton
SED 36
10 April 2006
Federation of Community Legal Centres (Vic)
SED 33
10 April 2006
Fitzroy Legal Service Inc
SED 40
10 April 2006
Free TV Australia
SED 59
19 April 2006
J Goldring
SED 21
5 April 2006
S Gurciullo
SED 03
29 March 2006
M Head
SED 08
28 March 2006
B Ho
SED 07
9 March 2006
John Fairfax Holdings Ltd, News Limited and
Australian Associated Press
SED 56
18 April 2006
A Johnston
SED 02
24 April 2006
Law Society of Western Australia
SED 19
28 March 2006
G McBain
SED 13
30 March 2006
Media, Entertainment and Arts Alliance
SED 28
10 April 2006
J Melville
SED 15
7 April 2006
A Moore
SED 01
31 March 2006
National Association for the Visual Arts
SED 30
11 April 2006
National Legal Aid
SED 62
20 April 2006
Appendix 3. List of Submissions
Name
Submission
Number
259
Date
National Tertiary Education Union
SED 25
10 April 2006
E Nekvapil
SED 45
13 April 2006
D Nelson
SED 53
20 April 2006
New South Wales Bar Association
SED 20
7 April 2006
New South Wales Council for Civil Liberties Inc
SED 39
10 April 2006
New South Wales Young Lawyers Human Rights
Committee
SED 38
10 April 2006
Pax Christi
SED 16
9 April 2006
Public Interest Advocacy Centre
SED 57
18 April 2006
J Purvey
SED 06
12 March 2006
J Pyke
SED 18
10 April 2006
Queensland Council for Civil Liberties
SED 41
10 April 2006
N Roxon MP, Shadow Attorney-General
SED 63
28 April 2006
B Saul
SED 52
14 April 2006
Screen Producers Association of Australia
SED 35
11 April 2006
C Shaw
SED 11
27 March 2006
S Smith
SED 04
24 March 2006
A Spathis
SED 17
10 April 2006
R Stanford
SED 55
23 March 2006
J Stanhope MLA, Chief Minister ACT
SED 44
13 April 2006
A Steel
SED 23
18 April 2006
260
Name
Review of Sedition Laws
Submission
Number
Date
Sydney PEN
SED 27
10 April 2006
M Talbot
SED 10
21 March 2006
Victoria Legal Aid
SED 43
13 April 2006
H Wiles
SED 42
12 April 2006
D Wilson
SED 05
21 March 2006
B Wright
SED 58
19 April 2006
G Zdenkowski
SED 64
3 May 2006
Appendix 4. List of Consultations
Name
Location
Anti-Discrimination Board of New South Wales
Sydney
Australian Federal Police
Canberra
Australian Government Attorney-General‘s Department
Canberra
Australian National University Academics
Canberra
Commonwealth Director of Public Prosecutions
Canberra
R Connolly & C Connolly
Melbourne
K Eastman
Sydney
Human Rights and Equal Opportunity Commission
Sydney
Human Rights Lawyers
Sydney
Law Institute of Victoria
Melbourne
L Maher
Melbourne
Media and Arts Organisations
Sydney
Media Organisations
Sydney
D Neal
Melbourne
New South Wales Bar Association
Sydney
B Saul
Sydney
University of Melbourne Academics
Melbourne
Victorian Bar Human Rights Committee
Melbourne
M Weinberg
Melbourne
Appendix 5. List of Abbreviations
The entities listed below are Australian entities unless otherwise stated
AAP
Australian Associated Press
ABC
Australian Broadcasting Corporation
ACT
Australian Capital Territory
ADF
Australian Defence Force
AEC
Australian Electoral Commission
AFP
Australian Federal Police
AGD
Australian Government Attorney-General‘s Department
ALHR
Australian Lawyers for Human Rights
AMCRAN
Australian Muslim Civil Rights Advocacy Network
ASDA
Australian Screen Directors Association
ASIO
Australian Security Intelligence Organisation
Basic Law
Basic Law of the Hong Kong Special Administrative Region
of the People’s Republic of China 1997
CCTV
Closed circuit television
CDPP
Commonwealth Director of Public Prosecutions
CERD
International Convention on the Elimination of all Forms of
Racial Discrimination 1966
CLCs
Community Legal Centres
COAG
Council of Australian Governments
CPA
Communist Party of Australia
DPP
Director of Public Prosecutions
ECHR
Council of Europe Convention for the Protection of Human
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Review of Sedition Laws
Rights and Fundamental Freedoms 1950
Gibbs Committee
Committee of Review of Commonwealth Criminal Law
Hope Commission
Hope Royal Commission on Australia‘s Security and
Intelligence Agencies
HREOC
Human Rights and Equal Opportunity Commission
ICCPR
International Covenant Civil and Political Rights 1966
IP 30
Review of Sedition Laws (ALRC Issues Paper 30, 2006)
LRCC
Law Reform Commission of Canada
MCCOC
Model Criminal Code Officers Committee
MEAA
Media, Entertainment and Arts Alliance
NAVA
National Association for the Visuals Arts Ltd
ONA
Office of National Assessments
PIAC
Public Interest Advocacy Centre
POW
Prisoner of War
RDA
Racial Discrimination Act 1975 (Cth)
SCAG
Standing Committee of Attorneys-General
TSRA
Torres Strait Regional Authority
UN
United Nations
UNCHR
United Nations Commission on Human Rights
UNHRC
United Nations Human Rights Committee
VLA
Victoria Legal Aid